Termination of Employment Due to
Temporary Illness or Injury
This is an informational article only; this is not legal advice. This area of law is complex, specific legal advice should be sought.
Can an employee be terminated from their employment while absent due to illness or injury – the short answer to this question is yes, employment can be terminated when an employee is absent due to illness or injury, but it carries risks, and it is complex.
Termination of employment due to temporary illness or injury intersects the realms of employment law and human rights.
It is crucial for both employers and employees to understand their rights and responsibilities in such situations.
There are many different facts to consider in this area of law, this is why it is crucial that specific legal advice is obtained and the general advice and or information is not relied upon when making decisions concerning this topic.
Legal Perspective
In Australia, the legislation does protect workers from being dismissed solely because of temporary illness or injury. For instance, in Australia, the Fair Work Act 2009 (Cth) (FW Act) prohibits employers from dismissing an employee because they are temporarily absent due to illness or injury.
Section 352 of the FW Act is an example of legislation that deals with this scenario. This legislation sets out provisions where termination maybe lawful along with the protections regarding employees who are temporarily away from work through illness or injury.
We have deliberately not included specific advice in this article given the requirement to assess each situation specifically, comparing the facts to the legislation.
In addition, parties may also find further details under the discrimination sections of the FW Act and under the applicable state or federal equal opportunity legislation.
Reasonable Adjustment
Reasonable Adjustment should always be considered ahead of identifying that inherent duties are not available.
Employers are often required to make "Reasonable Adjustments" for employees dealing with temporary illness or injury. This could involve modifying work hours, providing special equipment, or reassigning the employee to a less physically demanding role.
The Role of Medical Certificates
Medical certificates play a crucial role in this process. They provide evidence of the employee's condition and may also give an indication of when the employee might be able to return to work.
The provision of a valid medical certificate, coupled with the employee having available paid personal leave, increase complexities in relation to termination of employment.
Termination on Grounds of Incapacity
While employees are protected from dismissal due to temporary illness or injury, there are circumstances where termination may be lawful.
If an employee is no longer able to perform the inherent requirements of their job due to their condition, and reasonable adjustments cannot alleviate this, employers may be able to terminate employment on the grounds of incapacity.
In the event your investigation has concluded, you have medical advice sufficient to decide and you are considering your decision, including the termination of employment, please seek advice prior to terminating an employee’s employment.
Conclusion
Termination of employment due to temporary illness or injury is a sensitive issue that requires careful handling.
Employers must balance their operational requirements with their legal obligations and the rights of their employees.
It is always advisable for parties to seek legal advice when navigating these complex situations.
Salt Legal
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