The FWC recently provided employers with an unintentional lesson in how not to handle sick leave – what can HR learn from this?
The controversial resignation of FWC vice-president Michael Lawler who took sick leave at full pay for more than nine months while helping his partner fight a Federal Court ruling serves as a key example of how not to handle long-term sick leave, says McDonald Murholme managing direct Alan McDonald.
“The resignation of vice-president Lawler brings to a conclusion reputational damage to the Fair Work Commission,” McDonald told HC Online.
“The Commission has been criticised for paying sick leave to the vice-president while he appears to work to assist his partner Kathy Jackson in the Federal Court,” he says.
McDonald points out that a sick or injured employee must not work, even in a voluntary capacity, for someone else while claiming sick leave from their employer.
Lawler continued to collect his $430,000 salary during his sick leave, while helping his partner, former Health Services Union official Kathy Jackson, fight a Federal Court ruling that she misappropriated $1.4 million of union funds.
FWC president Iain Ross told a Senate hearing in October that he had approved 215 days of sick leave for Lawler on the basis that he was medically unfit to perform his duties, the ABC reported.
"He did not seek and I did not approve leave for the purpose of assisting his partner in legal proceedings," Ross told the hearing.
But because Mr Lawler was a statutory office holder, the FWC was powerless to sack him, as a vote by both houses of Parliament would have been required to remove him from his position.
A week ago, former Federal Court Judge Peter Heeley received an independent report on Lawler’s conduct while at the FWC.
McDonald welcomed Lawler's resignation and says while the Government was too slow to remove him from his position, should make public the findings of the Heeley report.
“It is not surprising that there would be a lot of public interest in this matter because the Fair Work Commission should comply with excepted standards,” he says.
“The Heeley report about Lawler will be kept private so we will never know whether it contained a recommendation that Lawler repay for sick leave in part or in full,”
“Such a recommendation if made would be embarrassing for the president who authorised the payments apparently without sick leave certificates.”
McDonald said that the report should have been published in the interests of transparency and to help avoid such a mistake in the future.
He said the issue was very sensitive for the FWC president, since Lawler’s payments were based on a very high salary and using public money.
“The president felt constrained to act because Lawler was appointed by the Executive Council, not him,” McDonald explains.
“He was dependant on the government to act. The government was very slow to do so.”
As there appeared to be a very poor relationship between the vice-president and the president, the ability of the president to quietly influence Lawler's conduct failed, Murholme says.
“So it was a combination of factors unlikely to be repeated which caused this terrible example of how not to deal with a long term sick leave situation to occur,” he told HC Online.
He says the good news is that a replacement for Lawler's role should not be required, because there are already three vice-presidents in the FWC where traditionally there have only been two.
“Around $1 million a year can be saved by not reappointing another vice-president,” McDonald says.
“The business community might be very concerned if there is a further appointment given the poor handling of the Lawler illness.”
Lawler resigned from his position of as a presidential member of the Fair Work Commission on March 03, 2016.
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