Is it ever legal to dismiss an employee with a long-term illness?
When an employee is diagnosed with a long term illness, it is up to HR to manage the situation with sensitivity and respect – particularly when you consider that by dismissing that employee, you may run afoul of unfair dismissal legislation, workers compensation laws, anti-discrimination and/or disability discrimination laws.
Challenges most frequently arise because no-one knows it’s going to be a long term illness when an employee initially takes time off from work, unless it’s the result of a serious accident.
“Every situation is unique and most companies do a wonderful job of taking care of their employees where serious or life threatening illness arises,” said senior HR professional, Julianne May.
“Tension around the topic is usually heightened when there is a lack of proper information exchanged by the parties involved, when communications fail.”
For that reason, May said that as an HR director, your main priority should be to keep the communication lines open.
“You have to keep in touch with the employee, because both parties require information in exchange. The employee needs to know about their leave accruals, when will they run out and how to access their salary continuance program,” she said.
“On the other hand, we need to know about the progress of their condition, receive updated medical certificates, determine if there is a partial capacity to return to work and let them know about our decision making points. I take a case management approach and keep good records along the way.”
There’s no simple answer to what is a sensitive and complicated situation, particularly as complex legislation surrounds potential WHS and industrial relations issues that arise.
HR directors should consider that under the Fair Work Act, an employee is protected from dismissal when temporarily absent due to illness or injury, unless their absence extends for more than three months (or three months within 12 months). Their employment may be validly terminated if their illness or injury has a demonstrable adverse impact on their ability to perform the inherent requirements of their job.
Challenges most frequently arise because no-one knows it’s going to be a long term illness when an employee initially takes time off from work, unless it’s the result of a serious accident.
“Every situation is unique and most companies do a wonderful job of taking care of their employees where serious or life threatening illness arises,” said senior HR professional, Julianne May.
“Tension around the topic is usually heightened when there is a lack of proper information exchanged by the parties involved, when communications fail.”
For that reason, May said that as an HR director, your main priority should be to keep the communication lines open.
“You have to keep in touch with the employee, because both parties require information in exchange. The employee needs to know about their leave accruals, when will they run out and how to access their salary continuance program,” she said.
“On the other hand, we need to know about the progress of their condition, receive updated medical certificates, determine if there is a partial capacity to return to work and let them know about our decision making points. I take a case management approach and keep good records along the way.”
There’s no simple answer to what is a sensitive and complicated situation, particularly as complex legislation surrounds potential WHS and industrial relations issues that arise.
HR directors should consider that under the Fair Work Act, an employee is protected from dismissal when temporarily absent due to illness or injury, unless their absence extends for more than three months (or three months within 12 months). Their employment may be validly terminated if their illness or injury has a demonstrable adverse impact on their ability to perform the inherent requirements of their job.
