Public Holiday periods often cause headaches for employers who feel the cost of unauthorised absenteeism, loss of productivity, misuse of sick leave, and confusion around public holiday entitlements.
In this blog, we canvass some of the typical issues arising around festive and public holiday periods and provide some tips and tricks to ensure businesses are able to provide seamless customer and client service over the Easter period without feeling the cost of staff issues.
Australian employers often bear the brunt of the “sickie” culture, with a spike in sick days around festive seasons and public holidays.
As a starting point, employers should have an up-to-date and comprehensive suite of contracts and policies that underpin their operations and set clear expectations to employees around taking leave. For instance, a leave policy should clearly outline the employer’s expectations around communicating leave requests, including how and when an employee must communicate their intention to take leave.
Given the propensity to drink alcohol on and around public holidays, another helpful starting point is a clear and robust drug and alcohol policy to ensure expectations around drug and alcohol use and consumption (including consumption at any work-related functions) are widely known and understood. That policy should provide the employer with sufficient discretion to ensure the business is not inadvertently in breach where it supplies, or encourages consumption of, alcohol at any work-related event or function. A tailored drug and alcohol policy is particularly pertinent in safety critical workplaces such as factories and warehouses. A well-drafted and well communicated policy may be sufficient to deter absenteeism or a hungover and unproductive workforce.
Although prevention is always better than reaction, a policy won’t always be enough to prevent absenteeism. Accordingly, employers may need to consider what action it may take where it suspects sick leave may have been taken without a legitimate reason.
An employer has an entitlement under section 107 of the Fair Work Act 2009 (Cth) (‘the Act’) to require the employee to provide evidence to support the taking of paid sick leave. Notwithstanding that express legislative entitlement, it is prudent to reinforce this in any policies relating to leave. For example, a leave policy may state that the employer will require a medical certificate for any sick leave taken either side of a public holiday and that failure to do so would constitute failure to follow a lawful and reasonable direction.
In limited circumstances, it may also be reasonable to pursue disciplinary action if you doubt the legitimacy of an employee’s sick leave. In a recent and highly publicised decision, Avril Chapman v Tassal Group Limited t/a Tassal Operations Pty Ltd  FWC 4630, the dismissal of a factory worker who took sick leave for a hangover, the day after the ANZAC Day public holiday was held to be unfair by the Fair Work Commission.
The relevant employee left her employer a voicemail on ANZAC Day afternoon stating that she would not be fit for work the following day as she had “overindulged”. The Fair Work Commission ultimately held the termination to be unfair. In particular, the employer relied on a previous warning given to the employee ostensibly for similar conduct and the FWC considered that the employer had “misused the significance of the prior warning” and that “another sanction such as performance management or a further, perhaps even final warning was appropriate”. Ultimately, the employee was awarded $8,229 in compensation.
Last Minute Annual Leave Requests
Employers are commonly inundated with last minute leave requests around long weekends with employees requiring additional time to travel to visit friends or relatives. Again, this is where clearly drafted and well communicated policies come into play.
Any leave policy should specifically outline what the business will consider to be an unreasonable leave request. For instance, if a policy dictates that the business will not consider annual leave requests without 3 weeks’ notice, that inclusion may be adequate to deter last minute requests.
Significantly, in addition to your policies, it is important to note that employers cannot “contract out” of obligations under the Act, which (at section 88(2)) prohibit unreasonable refusal of an annual leave request.
When considering a last minute annual leave request and whether such request can be reasonably refused, employers need to consider:
• The needs of both the employee and the employer’s business;
• The agreed arrangement with the employee (again, that’s where provisions in contracts and policies may come in handy);
• The custom and practice of the business;
• The timing of the requirement or direction to take the leave; and
• The reasonableness of the period of notice given to the employee to take leave.
Staffing over Easter – Requiring an Employee to Work Public Holidays
Employers may have important projects that require staffing over the Easter period or operate in an industry, such as hospitality, fast food, or retail that remain fully operational over that period.
In circumstances where you require staff to work public holidays, reasonableness is again a key factor that affects whether you can direct an employee to work. Under section 114 of the Act, an employer may request that an employee work on a public holiday, provided that request is reasonable.
It is also important to consider any relevant modern award provisions pertaining to public holidays. For example, consider the correct penalty rate owed to employees who work public holidays and also whether the relevant modern award includes any flexibility around public holidays such as the accrual of days in lieu instead of public holiday pay.
For award free employees (such as some senior managers) it is important to consider whether any contractual provisions pertain to public holidays.
What if an employee refuses to work public holidays – Can You Take Disciplinary Action?
An employee may refuse a request to work on a public holiday if the request itself was unreasonable or where the refusal to work is reasonable – this can be a difficult balancing exercise and requires measured consideration.
In Pietraszek v Transpacific Industries Pty Ltd t/a Transpacific Cleanaway  FWA 3698, the relevant employee did not work on two public holidays (Christmas Day and Boxing Day) despite his employer’s request to work. As a result of the employee’s failure to attend work, his employer terminated his employment. In that case, when considering whether the dismissal was unfair, the Fair Work Commission held that the employer’s request to work on the public holidays was reasonable given the nature of the business and the employee’s full-time status. On the other hand, the employee’s refusal was also deemed reasonable as he had carer responsibilities and had already made plans for the public holidays on the mistaken belief that he would not be required to work public holidays in his role (as had been the case for the previous 12 months). In determining that the dismissal was unfair, the FWC noted that it was relevant that the employer failed to ask the employee why he was not able to work on the public holidays and, had they made such enquiries, the outcome may have been different.
That decision is a useful reminder that open and early communication is crucial when it comes to work on public holidays.