Can you terminate when leave starts to hurt?

Q: We have an employee who has been away from work for a series of lengthy periods in the last year due to a non work related injury. It is untenable for us to keep the employment open as they are unreliable and absent much of the time. What options do we have in these such circumstances?

A: Termination may be an option but there are a number of considerations that need to be taken into account before making that decision in order to mitigate the risk of a general protections, discrimination or unfair dismissal claim.

First, consider whether the employee has been meeting notice and evidence requirements as per the company’s policy for each of the absences. Typically, a policy will require contact to be made with a particular person such as the direct supervisor or manager prior to the commencement of the missed shift, or otherwise as soon as reasonably practical.

Evidence that would satisfy a reasonable person that the employee was not fit during the period of absence may also be required. Examples might include a medical certificate, statutory declaration or some other form of proof.

Failure to comply with company policies will generally result in disciplinary action which can typically include written warnings. If the employee has breached company procedure more than once then termination may result. Following company policy carefully, applying it consistently and providing employees with a fair process will be critical in defending any claims that may come about from termination due to procedural breach.

Fit for work?

If the employee has met the requisite notice and evidence requirements, or hasn’t been performance managed despite not following procedure, consider sending the employee for a fitness for work assessment.

This should generally be reserved for when the employee has been away from work for an extended period – say at least three months within a 12-month period and they have exhausted their entitlement to paid personal leave – and there is genuine concern they are unable to safely perform the core functions of their role.

It is advisable to direct the employee to attend the fitness for work assessment during paid work time, that the company cover the cost of the appointment and that a provider that specialises in fitness for work assessments is selected by the business to undertake the assessment.

If the employee fails to attend the appointment, this may provide the company with the ability to performance manage.

Employers should provide sufficient information to the assessor on the particulars of the role to ensure a thorough assessment as to the employee’s current and on-going fitness for work is done.

If the prognosis is such that the employee is likely to continue to be unfit for the foreseeable future and no reasonable modifications can be made to the role to accommodate return to work, then it may be possible to lawfully terminate.

Notwithstanding this, it is always advisable to seek professional advice before making the decision to terminate in these circumstances.

Complications can arise in these circumstances:

  • Where modifications are suggested but are not operationally or financially viable
  • Where employees fail to attend scheduled appointments
  • Refuse to work partial hours that they have been cleared as fit to perform
  • Where the company receives conflicting medical opinions.

► CCIWA’s Employee Relations Advice Centre team can support members in managing each of these situations. For more, contact the team on (08) 9365 7660 or [email protected]

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