Issues to consider when an employee is off sick.

It sometimes arises that an employer needs to terminate an employee related to performance or conduct but either at the time of termination or a short time previously the employee had been absent on personal leave. Employers need to be careful in these situations as we have had a number of cases where the following the termination the employee claims that they were unlawfully terminated because the employer dismissed them for taking sick leave.

The Fair Work Act provides that an employer must not dismiss an employee because they are temporarily absent from work due to illness or injury particularly if the absence is less than 3 consecutive months or 3 months over a 12-month period, and they have provided a medical certificate.

However, there are some exemptions to these restrictions set out in the legislation. For example, the employee is no longer protected by the temporary absence provisions (i.e. the sick leave has gone over 3 months and paid leave has been exhausted), there is medical evidence that the employee is unlikely to return to work in the foreseeable future, even with reasonable adjustments (often referred to as a frustration of contract), or the reason for termination is not because of the illness itself, but due to incapacity to perform the job after fair process and consultation.

Before terminating an employee whilst on sick leave or soon after being on sick leave, best practice is

1. Get advice, Andrew can assist in this regard.

2. If the absence is long term get a medical capacity report (with employee consent) to understand whether they will ever return to work.

3. Consult with the employee about their condition, recovery expectations, and reasonable adjustments.

4. Document everything—especially communications, reports, and performance assessments and conduct warnings.