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Monday 22nd February 2016
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When can you dismiss an absent worker?
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In today's Workplace Bulletin:
- Do you have to pay workers if they can’t perform their duties?
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 | Many readers would have experienced the inconvenience to their business of having an employee absent from work for a long period. In today’s economic climate, most businesses are not in a position to ‘carry’ an employee for any extended duration. And the cost of supporting a worker on sick leave while paying for a temporary replacement can stretch businesses’ finances. |
But before you dismiss an absent worker for incapacity there are many factors to consider.
At the outset, you need to be aware of legislation that imposes blanket prohibitions on terminating the employment of workers within a certain period since the incapacity commenced.
For instance, the Fair Work Act 2009 (Cth) prohibits dismissal because an employee is temporarily absent on sick leave. This will not be the case if they have taken more than three months of sick leave (either continuously or in aggregate over the past 12 months) and they are not on paid sick leave for the entire duration of the absence.
Similar restrictions arise under workers’ compensation legislation and other State and Territory legislation.
So, when is it permitted?
Aside from the operation of this legislation, you can lawfully dismiss an employee who, due to illness or injury, cannot perform the inherent requirements of their job and there is nothing you can reasonably do to accommodate or adjust the workplace to enable the worker to meet those requirements.
However, to get to this point you generally need the best available relevant medical information about the employee’s capacity for work, now and into the reasonable future. You also may need access to some expertise about potential workplace adjustments or measures that could overcome the employee’s incapacity. |
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Case law
In Sipple v Coal & Allied ([2015] FWC 1080), the Fair Work Commission considered an unfair dismissal case brought by an employee who worked as a pit services operator. The employer dismissed the employee because the independent medical evidence about the employee’s capacity showed there was no prospect of him being able to perform the duties of his role. The dismissal was found not to be unfair.
But be warned … you need to deal with the employee about these issues fairly. In Jetstar Airways ([2013] FWCFB 9075) the Commission found the employer had a valid reason to dismiss an employee based on her medical capacity.
However, the dismissal was found to be unfair because the employer relied on a contentious psychological diagnosis and did not give the employee an opportunity to obtain views from her own treating practitioners about the diagnosis.
Dismissing an absent worker is not something businesses should undertake until they understand fully the process. Having access to a copy of the Portner Press Managing Lawful Dismissal will guide you through what you must consider before any dismissal and how you can protect yourself from legal risk. It explains:
- what makes dismissal unlawful;
- when and how you can lawfully dismiss an employee;
- how your policies and procedures can help you to manage dismissal in your workplace;
- the alternatives to dismissal; and
- your notice and termination pay requirements.
This comprehensive 53-page eBook will make sure you avoid any legal risk and that your dismissal process is lawful and fair.
Get your copy of Managing Lawful Dismissal.
Regards,
Charles Power
Editor–in–Chief
Employment Law Practical Handbook
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