By Brihony Tulloch

As an employer, dealing with ill or injured employees is inevitable. Depending on the severity of the situation, there are many ways you can deal with it, such as granting personal leave or creating a return to work plan.

But what if the worker isn’t playing by the rules? What if the employee’s absence has lasted for more than 3 months (within a 12-month period), or they have failed to notify you about their absence from work and haven’t provided you with a medical certificate or statutory declaration for the illness or injury? What happens next? Can you dismiss them – legally?

As an employer, you will be liable under general protections provisions in the Fair Work Act (2009) (Cth) if you discipline or otherwise disadvantage an employee because they have an illness or injury – unless you can establish all of the following:

1. The employee cannot adequately meet the genuine and reasonable requirements of the role.
2. There is no reasonable measure you could adopt to enable the employee to overcome their incapacity and perform the requirements of their role.
3. You have consulted with the employee and given them opportunity to provide relevant information on the above matters.
4. There is no obligation to provide suitable employment if the employee is receiving weekly benefits under workers’ compensation.
5. The dismissal is not unduly harsh when considering the employee’s length of service, employment history and the impact that dismissal will have on them.

Generally, anti-discrimination laws permit dismissal on the grounds of incapacity if the incapacity prevents the employee from meeting the inherent requirements of the role and nothing you can reasonably do will enable the employee to meet those requirements.

However, dismissing an employee for incapacity can have both legal and professional consequences. That’s why it’s important to consider the message it sends to your workforce, possible industrial implications or likelihood of union involvement, and the negative publicity it may cause your business.