Q: We have a casual employee who has not worked since November 2013 as she advised us she was recovering from an illness. We have been in touch with her a number of times since then and she continually informs us that she is getting better and will be in touch with us to organise a recommencement date, but it never eventuates.

Are there any obligations for casual employment that need to be met upon dismissal for illness that has lasted more than 3 months?

A: The Fair Work Act 2009 (Cth) prohibits an employer from dismissing an employee because of incapacity due to illness or injury, unless anti-discrimination laws permit the dismissal.

You will be able to dismiss an employee for temporary absence or illness if the employee’s absence extends for more than 3 months or the total absence of the employee within a 12-month period has been more than 3 months. You are also able to dismiss an employee if they are unable to meet the inherent requirements of the role (e.g. being able to attend work), and nothing you can reasonably do will enable the employee to meet those requirements.

The nature of casual employment is that their engagement starts and ends with each shift. Accordingly, you may not be under any obligation to notify the employee of their dismissal or give reasons for it. However, considering that the employee will be protected from unfair dismissal and may have a possible general protections claim, you may wish to write her a letter and set out that her employment is to be terminated, and the reasons for doing so.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Casual employment & Dismissal for current advice.