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Your questions answered: Can we dismiss an injured employee who is unable to return to work?

By Portner Press on February 3rd, 2019
  1. Termination of Employment
  2. Unfair Dismissal

 

Q
We have an employee who is effectively on leave without pay for the foreseeable future. He was injured at work two years ago, and has been unable to return since then. We have not formally terminated his employment.

Is it appropriate to formally terminate his employment due to his inability to carry out the normal duties of his role, unless he feels he can return to any extent?

What are our risks with this approach?

 

A
Under the Fair Work Act 2009 (Cth) (FW Act) and anti-discrimination legislation, it is unlawful to dismiss an employee because of incapacity due to illness or injury, unless:

  • the incapacity prevents the employee from meeting the inherent requirements of the role; and
  • nothing you can reasonably do will enable the employee to meet those requirements.

To avoid unfair dismissal liability, you will need to give the employee an opportunity to respond to the proposed dismissal before you make the decision, i.e. give him an opportunity to provide medical evidence to support his capacity to return to work.

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