Too Many Sickies Spoil the Action

The Fair Work Commission has refused to play nurse to a group of employees calling in sick, saying taking multiple sick leave absences constitutes covert industrial action. And since there was already protected industrial action taking place, the coordinated ‘sick leave’ was unprotected action, so had to cease.

The company and the employees were involved in negotiations for an agreement and the employees had gone through the proper processes to establish overtime bans and some other actions that were part of the protected action plan.

However, they ramped up their action by taking personal leave, even producing doctors’ certificates and statutory declarations to support their leave claims, in large numbers, at the same time. Management realised what was happening and applied to have this stop.

The FWC accepted the company had demonstrated its claims by showing typical pattens of sick leave versus what had been recently occurring. The change was dramatic and without satisfactory explanation from the employees, or their union. The FWC formed the same view as management, calling out the absences as industrial action.

In a frank warning to employees, the FWC said: The (employees) had an adequate opportunity to provide evidence as to the cause and purpose of their absences. That they may have provided medical certificates or statutory declarations in support of their absences does not alter the character of the action taken. If it is the case that the (employees) were told nothing could be done if they had a medical certificate to cover their absences then they were misinformed.”.

The FWC cited earlier Commission decisions which traversed the same territory, finding coordinated sick leave and other similar actions which result in the limitation on, or delay in, the performance of work in the normal manner, to be industrial action. Of particular interest in this matter is the regard paid by the FWC to the doctors’ certificates and statutory declarations. In issuing the Order to stop the action, the FWC concluded “it is now abundantly clear to employees that the provision of a certificate or other evidence is not enough to shield them from the provisions of the FW Act”.

Orora Packaging Australia Pty Ltd T/A Orora Bag Solutions v Ahmad (Khodr) El-Chami and Others [2020] FWC 224 (16 January 2020)