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An employee whose attendance was affected by health issues had an arrangement with her manager to work out of an office in another part of the city on days that she had to attend medical appointments. On one of these days, the employee did not attend work. Upon returning to work the employee sought annual leave for her absence. Her manager refused and advised the employee that her absences was ‘unauthorised’ that is not covered by leave and would be unpaid.

The employee stated on review that she had advised her manager in a telephone discussion prior to her absence that she would like to take annual leave and he had agreed. This was not the manager’s recollection and his email to the employee after the discussion did not indicate that he had agreed to annual leave. The Merit Protection Commissioner recommended that the decision to treat the employee’s absence as unauthorised be confirmed.

In a second case, an employee failed to return to work after an extended absence from work while on compensable leave. The agency had independent medical advice indicating that the employee was fit to return to work and directed that she do so on a particular date. The employee did not report for duty on the nominated day and presented medical advice from her general practitioner. The Merit Protection Commissioner was not able to review the employee’s concerns about the medical evidence the agency relied on or whether she was fit to return to work as these were matters covered by the Safety, Rehabilitation and Compensation Act 1988 and are excluded from review under the Public Service Regulations 1999. However, the Merit Protection Commissioner was satisfied that the agency had a reasonable basis (the independent medical opinion) for concluding that the employee should have returned to duty on the nominated day.

The agency advised the employee that she was on ‘unauthorised leave’. The employee viewed this as a punitive decision. The Merit Protection Commissioner noted that the employee was not on any form of leave and the agency’s actions were not punitive. The employee’s unauthorised absence was not a result of any decision by the agency but was a result of the employee’s failure to return to work to perform her duties.

The Merit Protection Commissioner was satisfied that the agency was entitled to treat the employee’s absence as unauthorised and to suspend the payment of her salary.