With sickness and sick leave being an inherent and unavoidable part of workplace life, there may come a time for any organisation when an employee’s sick leave clashes inconveniently with important disciplinary meetings.
Some employers may be tempted to get round this by requesting that the employee subject to disciplinary discussions ‘attend’ the meeting via phone, yet any HR manager dealing with such circumstances should tread lightly, according to one leading employment law specialist.
Lara Radik, senior associate at Brisbane-based law firm Carter Newell, observes a number of factors that should be taken into consideration by employers when considering asking an employee to attend a disciplinary meeting over the phone. These factors include the urgency of the meeting, the many advantages that in-person interaction allows, and the question of whether an employee is represented in such proceedings by a third party such as a lawyer.
Radik was on hand to answer HC Online’s questions regarding this potentially delicate and complex scenario.
How might an HR manager go about determining if an employee is able to attend a disciplinary meeting over the phone?
If an employee is certified totally unfit for work, it is inappropriate for an employer to compel the employee to participate in any disciplinary process, whether that process takes place in person, by telephone or otherwise. There may, however, be limited circumstances in which an employee is represented (for example by a union or a lawyer) and is capable of providing their representative with instructions notwithstanding the employee’s incapacity for work. In those limited circumstances, it may be appropriate to conduct a disciplinary meeting over the phone, notwithstanding the employee’s incapacity for work.
If an employee is unable to attend a disciplinary meeting in person for reasons other than total incapacity (such as partial incapacity, fly-in-fly-out work etc), it may be appropriate to consider conducting the meeting via telephone if it must take place urgently. If there is no urgency to the meeting, the more prudent course of action is to advise the employee of the intention to conduct a disciplinary meeting when they are next available to attend in person.
If the only urgency for conducting the disciplinary meeting is to avoid having to continue to pay sick leave, an employer may expose itself to the risk of an adverse action claim.
Whenever possible, it is desirable to conduct disciplinary meetings in person so as to ensure that the employee understands the allegations against them, to observe body language and demeanour, to facilitate multiple persons being present such as a witness or support person, and because addressing serious matters affecting the employee’s livelihood via telephone may be perceived by the employee as impersonal.
What steps might an HR manager take if an employee refuses to attend a disciplinary meeting over the phone?
If an employee refuses to attend a disciplinary meeting over the telephone, an HR manager should:
- Request that the employee provide reasons for their refusal, within a reasonable timeframe (for example 24-48 hours)
- Consider the employee’s reasons for refusal
- If the employee has provided compelling reasons for refusing to take part in a telephone disciplinary meeting, the employer should delay the disciplinary meeting until such time as it can take place in person
- If the employee does not have compelling reasons for refusing to take part in a telephone disciplinary meeting, the employer should remind the employee of his or her obligation to comply with all lawful and reasonable directions of the employer. The employer should nominate a time for the telephone disciplinary meeting to take place, and direct the employee to take part. The employer should further warn the employee that any refusal or failure to take part will be considered a failure to comply with a lawful and reasonable direction of the employer, which may lead to further disciplinary action, potentially including dismissal
