Q: We have an employee who is continually late to work. We believe he may be suffering from an illness. How is this situation best handled?
Turning up for work on time is a reasonable requirement of the role. Meet with the employee to explain why the lateness is a performance issue and ask if he has any personal issues that might be contributing to his performance. If he indicates ill-health is a contributing factor, explain that you need to understand why, to determine if there are steps you could take to help him perform his role satisfactorily.
You could suggest that the employee provide you with a medical report from his doctor. Alternatively, you could ask him for permission to talk to his doctor. If you do this, make a record of the conversation and give him a copy.
The employee may refuse your request for his medical details. If this happens, you can tell him he must provide the information within a reasonable period. If he doesn’t do so, you can state that you’ll have no option but to act in relation to his performance issue without considering the health issue. Explain to the employee that your request for his information is reasonable in the circumstances.
When you receive the medical information, you will need to determine whether it indicates that the employee’s health is a contributing factor to the performance issue. If so, determine what measures you might reasonably take to help him turn up to work on time.
Q: Can I arrange for employees to be subject to surveillance to test the legitimacy of a stress claim?
This wouldn’t be unlawful if the surveillance is in places where employees would not have a reasonable expectation of privacy.
However, there may be difficulties admitting evidence of surveillance in any legal proceeding, particularly if it is sourced in a manner the court considers to be unfair or intrusive. For example, surveillance of employees crossing the road in a public place is an instance where it is more likely than not that they wouldn’t have a reasonable expectation of privacy. Conversely, employees would expect a degree of privacy in the bathroom at home.
Q: Can I fill or make an employee’s position redundant when he or she is on stress leave?
In the short term, it would be best not to make any decisions that might have an effect on the employee’s ongoing employment until efforts are made to enable a return to work. This will reduce the risk of further aggravating the stress condition, which could extend the period the employee is receiving weekly payments.
If the employee is receiving weekly payments under the employer’s workers’ compensation policy, the employer will ordinarily be subject to an obligation to provide suitable employment for the employee.
However, if a return to work is unlikely or would cause the employee unjustifiable hardship, the position may be filled or made redundant, provided this decision is taken based on the requirements of the business, not the employee’s impairment.
Q: Should I have any concerns about contacting an employee directly while they are on stress leave?
Yes. In some circumstances, it’s advisable to establish protocols with employees’ relatives or partners for communication while they are on stress leave. The reasons for this include risk of exacerbating a stress injury.
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