We’re joined by Amber Millhouse, who’s a Senior Associate in the Workplace Relations Employment and Safety team at DLA Piper and joins us from Melbourne.  Amber welcome to BRR Media.

Thanks very much Kate, it’s great to be here.

Well Amber everyone has Olympics fever at the moment and employers might be finding that there’s either higher rates of absenteeism or less engaged productive workers.  How should employers be approaching this?

Well that’s right Kate, with matches scheduled at different times throughout the Olympics employees might be seeking time off to view games that coincide with their working hours, or as a result of the time difference between Australia and London they might fail to turn up to work at all, or they might not perform their duty in the required way after missing out on a good night’s sleep.  So the need for businesses to be prepared for the potential impact of this became very apparent to us as well as the need to manage the workforce for both the good of the business and employee relations.  So to determine how many Australian employers were approaching this DLA Piper conducted a survey through LinkedIn and through Twitter of human resources and other professionals.  The survey looked at the extent to which businesses are willing to offer flexibility to employees to watch events and whether those businesses are applying their policies or perhaps issuing guidance to staff in advance of the Olympics, as a way of managing the potential issues that might arise, such as unauthorised absence, increased internet usage or perhaps racial banter.  Our survey revealed that 40% of employers are actually intending to allow their employees some flexibility to watch the events.  Now of those businesses that would consider flexible working practices, the provision of unpaid time off was by far the most popular option at almost 67% of respondents.  And around 30% of respondents were in favour of allowing employees to swap shifts or to come in late or leave early in certain circumstances.

Okay well Amber, if employers don’t want to be flexible, can they take disciplinary action?

Well interestingly an overwhelming 70% of respondents to our survey said that they would consider disciplinary action for abuse of personal leave or lateness to work without their employer’s consent during the Olympics.  Now where an employer suspects an employee is abusing their personal leave as a way to watch the Olympics, then employers are well advised to address it promptly, noting their evidence and notice requirements regarding the taking of personal leave set out in the Fair Work Act or set out in the employee’s contract of employment or perhaps some other workplace policy.  And abuse of personal leave in those circumstances may entitle the employer to instigate disciplinary action against the employee.  But what employers can’t do is take disciplinary action against the employee who does take steps to comply with the notice and evidence requirements of the Act, if the employer is merely suspicious of the real reason for the personal leave.  An employer who’s suspicious about the validity of the medical certificate for example, will generally be obliged to accept the medical certificate as valid notwithstanding their suspicions unless circumstances exist that enable the employer to challenge or reject the certificate.  Now there have been a few reported decisions where employers have successfully challenged the validity of a medical certificate and these cases confirm really that an employer may only look behind that medical certificate or refuse to accept it or take other action such as disciplinary action to challenge its validity where there is sound evidence to do so or the circumstances are particularly exceptional or unusual.  And it will usually be in very limited cases where this is so.

Okay and Amber it is Olympics and obviously everyone’s excited and wants to get involved, but there are considerations for business with their day to day running needs.  What would be your key tips for employers to balance these two things?

Look Kate we think that clear communication with employees about what is expected of them will greatly assist in the effective management of potential issues.  We’re also advising our clients to adopt a flexible approach where they can because that is going to be useful if businesses want to improve staff morale.  We also suggest keeping an eye out for excessive employee distractions and it’s useful to address this promptly in accordance with the business’ usual policies and procedures.  And finally we’re saying to our clients don’t overreact to employee lateness or absenteeism, but be mindful that some unauthorised absence may ultimately require disciplinary action if the employee fails to provide the appropriate notice and evidence required of them.

Well I think that’s some really good tips for business there, Amber thank you so much for joining us today.

It’s a pleasure Kate, thanks for having me.

That was Amber Millhouse, who’s a Senior Associate in the Workplace Relations Employment and Safety team at DLA Piper.  Now listeners if you have any questions for Amber of course you can send them through either using the panel on your screen, or otherwise via email to law@brrmedia.com.