Dismissed for excessive sick leave

By Jeff Salton on July 17th, 2017

Many small businesses in Australia run very lean operations. This usually requires all staff, including management, to be very hands-on and ‘multi-functional’. And when one worker develops a permanent medical condition that causes them to take an excessive amount of sick leave, this places an added strain on the business, which can include a plummet in worker morale when everyone has to ‘cover’ for the absent worker – sometimes without additional pay.

What happens when the business-owner knows there isn’t enough profitability in the business to simply hire a replacement while paying sick leave for the ill worker? And even if the worker is no longer being paid sick leave, it’s a difficult and costly decision to hire a new worker and train them up only to dismiss them when the original worker returns to their position … and who knows for how long before they are on sick leave again?

The temptation would be to dismiss the worker on personal leave and hire another permanent worker immediately, thus relieving the tension in the workplace and returning the business to ‘normal’.

Can someone on sick leave be dismissed for not fulfilling their expected duties due to the amount of sick leave they are taking?

Employment law expert and Editor-in-Chief of the Employment Law Practical Handbook Charles Power says it is unlawful to treat an employee adversely (e.g. to dismiss them) because they are absent from work due to illness or injury.

“However, this prohibition will not apply where a worker’s employment is terminated because they are absent for three months or more (consecutively or cumulatively in a 12-month period) and they are not on paid sick leave for the duration of the absence,” Charles says.

Anti-discrimination legislation

But he warns that the dismissal may still attract liability under other laws, such as anti-discrimination legislation.

“You should raise the issue of the employee’s absence with them and ask whether there is anything you need to do to accommodate any illness or injury affecting their ability to perform their duties,” he says.

“This might include asking for their authority to write to their treating doctor to get a medical report about the impact of their condition upon their ability to safely perform their duties. If you could reasonably accommodate their condition, discrimination law requires you to do so unless it would impose unjustifiable hardship upon your business,” Charles adds.

Finally, Charles says if there is nothing you can reasonably do to accommodate their condition and they reach the three-month absence mark, you could dismiss them for incapacity.

Charles is also the author of Managing Lawful Dismissal – a 53-page eBook that guides you through what you must consider before dismissing an employee 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.

Before you decide to dismiss an employee, it’s critical you understand your legal obligations. This comprehensive eBook will make sure you avoid any legal risk and that your dismissal process is lawful and fair, especially if you are dealing with the tricky subject of sick leave and absenteeism.

Get your copy today of Managing Lawful Dismissal and understand the ‘rules’ before making a costly – and unnecessary – mistake.


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