After three months of unpaid absence, it can be appealing for employers to dismiss an employee who is unavailable due to ill health or injury. But before replacing a missing employee, it’s important to seek both medical and legal advice.
When managing an employee on extended sick or personal leave, three months is an important milestone. If an employee has used up their sick leave and has been away for more than three consecutive months, or more than three months across the past 12 months, then they may no longer be protected from the unfair dismissal provisions for illness or injury under the Fair Work Act. This is the point that organisations can choose to cut ties with an employee who cannot fulfill their role.
However, employers must be aware that if they chose to dismiss a worker after a three-month absence, the employee can still challenge them with the following claims:
This is why employers who are considering terminating a worker’s employment on the basis they have been on unpaid sick leave for more than three months, should seek medical and legal advice before taking any action.
Throughout this process it is vital that employers clearly communicate with their worker. Below are some useful tips for managing an ill or injured employee.
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DO |
DON’T |
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Plan meetings with the employee in advance |
Fail to consider any relevant policies, procedures or industrial instruments |
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Prepare a script for each meeting with the employee, setting out key aspects of discussion |
Go through the process alone – instead seek expert medical or legal advice as required |
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Provide the employee with notice of the meeting and a broad outline of topics to be discussed |
Obtain an independent medical assessment and/or report without the employee’s consent unless the employee is reasonably directed to attend the independent medical assessment |
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Provide the employee with the opportunity to respond course of action |
Deny the employee paid leave when attending any employer directed medical examinations |
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Clearly communicate any changes to an employee’s duties and the period those changes to duties will apply |
Fail to schedule a post medical assessment meeting with the employee |
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Keep detailed records of the meetings |
Take irrelevant considerations into account when making decisions about the employee’s employment |
Source: Hor, Jaydeep (2020) Labour and Employment Law Manual, page 150
Great care must be taken in these circumstances to protect your business from a damaging claim. Failure to obtain legal and medical advice before moving to dismiss an ill or injured worker may result in an employer defending a very difficult and expensive Fair Work Commission, Court or Tribunal Claim.
If you would like further advice around managing an employee on extended sick or personal leave, or any other employment matter, contact me at robert@hillhouse.com.au or call 07 3220 1144.
I'm assuming this is an exact extract from the book. [CM1]
The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.