Employers need to tread carefully when considering whether or not to dismiss an employee who has been absent for a long period. Julia Sutherland, Counsel at Ashurst, outlines the risks that employers should be aware of.
It is possible to lawfully dismiss an employee who has been absent from work for a long period. However, careful, prior consideration needs to be given to several factors to ensure that any decision to dismiss is appropriate and legally defensible. This decision commonly arises where an employee is absent due to illness or injury.
The main legal risks that arise when considering dismissal in these circumstances are that the employee alleges:
• the dismissal is because of their illness or injury and this is in breach of the general protections provisions of the Fair Work Act or anti-discrimination laws
• the dismissal is in breach of the general protections provisions of the Fair Work Act because their absence is a "temporary absence from work"; and/or
• the dismissal is in breach of protections contained in workers compensation laws, which apply where an employee is unfit for work following a work related injury. For example, in NSW an employer must not terminate employment within 6 months of the date of the injury.
A reverse onus of proof applies where there is an alleged breach of the general protections provisions of the Fair Work Act. This means that the employer must prove that, on the balance of probabilities, illness/injury or temporary absence was not a reason for the dismissal.
To mitigate against these risks, before any decision is made to dismiss, employers should:
• review the employee's terms of employment, including to understand the employee's right to paid sick leave and any notification and evidence requirements to take sick leave
• require the employee to comply with any notification and evidence requirements
• seek appropriately detailed medical evidence from either the employee's treating doctor or an independent medical practitioner. The doctor should be briefed with detailed information about the role that the employee is required to perform, as well as any medical evidence the employer already has. The employer should seek information from the doctor which explains:
o the nature of the employee's condition
o the employee's short, medium and long term prognosis
o the effect of the illness or injury on the employee's ability to perform the key aspects of their role, including as a consequence of any medication they may be required to take; and
o whether the employee may perform that role with adjustments to it.
This information is necessary and relevant for an employer to consider whether an employee is able to perform the "inherent requirements" of their role. A termination of employment where an employee is unable to perform the "inherent requirements" of their role will not be a breach of the Fair Work Act or anti-discrimination laws.
• consider whether operationally the employer's business can continue to accommodate the employee's absence (eg because the prognosis of a full return to work in the short to medium term is good and other staff can cover their absence for this period)
• communicate with the employee during their absence. Make it clear that the employer's focus is to understand how their illness/injury affects their ability to perform their role
• keep records that show the operational requirements the employer is trying to manage; and
• before making any final decision, consider seeking legal advice to check that any legislative prohibitions on dismissal will not be triggered.
This article was contributed by Julia Sutherland, Counsel at Ashurst