Notice to unfit employee being terminated

Q&A

Notice to unfit employee being terminated

We have recently decided to terminate an employee who has been absent from work for over 8 months, owing to a non work-related injury. We have received a report from his treating surgeon stating that he will never be fit to return to his pre-injury duties, and his condition has rendered him unable to carry out the inherent duties of his position.

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The following question sent to WorkplaceInfo raised this issue.
 
We have recently decided to terminate an employee who has been absent from work for over 8 months, owing to a non work-related injury. We have received a report from his treating surgeon stating that he will never be fit to return to his pre-injury duties, and his condition has rendered him unable to carry out the inherent duties of his position.
 
Under our Award the employee is entitled to, and is receiving, income protection insurance payments which will continue for a further 16 months at his normal rate of pay plus bonus. We have decided to dispense with a notice period to enable the employee to have immediate access to his accrued entitlements.
 
In these circumstances are we obliged to pay him in lieu of notice, in addition to the continuing weekly payments of income protection?
 
The employer is required to provide the appropriate period of notice, or payment in lieu thereof, under the Workplace Relations Act when the termination is by the employer. This is a separate requirement from any other payments being received by the employee.
 
However, where an employee terminates the employment, any requisite notice under the applicable award or agreement may be waived by mutual agreement.
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