'Marie has been on sick leave for months. Can I dismiss her?'

Analysis

'Marie has been on sick leave for months. Can I dismiss her?'

An employee who’s consistently absent can leave you understaffed. When can you pull the trigger?

An employee who’s consistently absent can leave you understaffed. When can you pull the trigger?

Marie from sales has been on sick leave since October, and the team is struggling to meet targets without the extra pair of hands. She’s been absent for more than three months, so that means you can terminate her employment, right?
 
Not so fast. Employers are often under an impression that the “temporary absence” provisions in the Fair Work Act and Regulations permits them to lawfully dismiss an employee who has been absent for more than three months, but this isn’t the case, according to Emily Slaytor, from Australian Business Lawyers & Advisors.

“When dismissing an employee, employers still need to be mindful that they are not inadvertently breaching any anti-discrimination, adverse action or unfair dismissal provisions,” she says.

“It will be a clear case of discrimination if an employer dismisses an employee because they have been absent due to illness or injury, unless the employer is able to establish (on a sound and defensible basis) that the decision to dismiss the employee was because they were unable to perform the inherent requirements of the role.”

Additionally, “adverse action" provisions in the Fair Work Act deem certain actions by an employer unlawful, including dismissing an employee who is temporarily absent from work due to illness or injury. Dismiss an employee without sufficient or acceptable reason and/or without the employer following proper procedure, and it may be declared an unfair dismissal by an industrial tribunal, leaving you open to claims for reinstatement or compensation.

“There is no such thing as a risk-free dismissal,” Slaytor adds. “Employers should obtain professional advice before taking steps to dismiss an employee, even where there is a valid reason, but this is particularly the case where the employee has been absent from work for a long period due to health reasons.”

This article was originally published on the NSW Business Chamber website. WorkplaceInfo is owned by the chamber.
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