The Fair Work Act 2009 makes it unlawful for an employer to dismiss an employee because he/she is temporarily absent due to illness or injury. Dismissing an employee temporarily absent for illness or injury does not apply when the employee:
- has been absent for more than three months or total absences of more than three months out of 12; and
- is not on paid personal/carer’s leave for the duration of absence.
Workers’ compensation legislation in New South Wales provides an offence to dismiss a worker within six months of a workplace place injury because the worker is no longer fit for employment due to the injury.
Disability discrimination
The Commonwealth Disability Discrimination Act states that it is unlawful for an employer to dismiss an employee because of a workplace injury.
If the workplace injury means that the employee cannot carry out the inherent requirements of the role and the employer cannot make reasonable adjustments for the employee in the role, the employer can dismiss the employee.
An adjustment will be unreasonable if it creates an unjustifiable hardship on the employer.
The termination process
To guard against the risk of unfair dismissal, an employer should also follow a fair process when dismissing an employee who has been on workers’ compensation for an extended period. The employer will need to gather evidence that the employee cannot carry out the work associated with the role.
Invariably, the best medical evidence is provided in a medical report by an independent medical practitioner who has examined the employee.
The employer should direct the employee to attend an independent medical examination. The employer should ask the doctor for answers to specific questions regarding the employee’s fitness to perform the inherent requirements of the role.
Once the report has been returned and on the assumption that it demonstrates that the employee is unable to return to his/her pre-injury position, the employer can then commence a show cause process
When the employee’s response is received and does not provide an adequate reason that the employment should not be terminated, the employer can proceed.
