The Fair Work Act 2009 (Cth) prohibits the termination of an employee for certain reasons. For example, an employer can’t terminate for temporary absence from work because of illness or injury. However, when it comes to long-term absentee, employees legislation provides some protection for an employer.

Employers should understand their obligations when wanting to terminate an employee on long-term sick leave or those away due to a prolonged injury.

My Employee Is Temporarily Absent – Can I Dismiss Him or Her?

Section 352 of the Fair Work Act provides that an employer must not dismiss an employee because the employee is temporarily absent from work because of an illness or injury.

The Fair Work Regulations state that an illness or injury will be prescribed if it supported by:

The Fair Work Regulations also state that the period of temporary absence is for 3 months. If an employee has used all of their accumulated sick leave and is on unpaid leave for more than 3 months, terminating their employment is not automatically unlawful.

An employer will not be in breach of s 352 of the Fair Work Act if they dismiss an employee and the employee has been absent for longer than three months. However, the employee must not be on personal leave or on absent as a result of an accepted workers compensation claim.  

An employer should exercise caution in terminating this type of employment.

Section 351 of the Fair Work Act provides that an employer must not discriminate against an employee by terminating their employment to a physical or mental disability. An absent employee may be eligible to bring an adverse action claim following the three month period. But there is a legal exception for action taken because of the inherent requirements of a position.

The Inherent Requirements of the Role

If an employee is unable to perform the inherent requirements of the role, an employer may be protected from an adverse action claim.

It is not discrimination if the action taken relates to the requirements of the job because of the particular position concerned.

The concept of inherent requirements of a job will vary depending on the job.

They may include:

  • The ability to perform the necessary functions of the position.
  • Productivity and quality requirements of the position.
  • The ability to effectively work as part of a team or the organisation.
  • The ability to work safely and adhere to Occupational Health and Safety policies and legislation.

This means that an employer will not be in breach of the Fair Work Act if they dismiss an employee who has been absent with a long-term illness or injury if they are no longer able to fulfill the requirements of their position.

An employer should confirm with any treating health professional of the employee that they are in fact no longer able to fulfill the requirements of the position.

Did You Provide Procedural Fairness?

The employer must provide the employee with reasonable adjustments to help them perform the job prior to termination if a person with an illness or injury is no longer able to perform the inherent requirements of the role.

Reasonable adjustments also include the possibility of offering the employee a different position that accommodates to their injury.

If no reasonable adjustments are available to the employer, only then may the employee’s employment be terminated.

Key Takeaways

Terminating employees who are away on lengthy absences due to illness or injury is risky. Having an employee be absent for a period beyond a “temporary absence” alone will not provide a defence to an adverse action claim.

Employers considering such action should be mindful of their obligations.

It is recommended that employers complete the following prior to terminating an employee’s employment:

  • Keep in contact with the employee during their absence.
  • Always obtain medical certificates and if required liaise directly with the health professional to obtain their view of what the employee can and cannot do as part of their role.
  • Keep written records of the employee’s absences and any correspondence with the employee regarding his or her illness or injury.
  • Always provide procedural fairness!
  • Seek legal advice to confirm that the correct steps have been followed.

If you’re unsure whether your employee will still be able to perform their inherent duties, or you want to know whether you should provide adjustments, get in touch with LegalVision’s employment lawyers today by calling 1300 544 755, or fill out the form on this page.

Adi Kedar
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