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UpdatesOct 04, 2013

How to dismiss an employee for incapacity due to illness or injury

Generally, the Fair Work Act prohibits you from dismissing an employee because of incapacity due to illness or injury. However, there are certain circumstances in which you can dismiss an employee who is ill or injured. Charles Power will explain below.

By Charles Power

Ed note: Generally, the Fair Work Act prohibits you from dismissing an employee because of incapacity due to illness or injury. However, there are certain circumstances in which you can dismiss an employee who is ill or injured. Charles Power will explain below.]

To lawfully dismiss an employee for incapacity due to an illness or injury you will need to establish the following six things:

  1. The employee cannot adequately meet the genuine and reasonable requirements of the role.
  2. There is no reasonable measure that you could adopt to enable the employee to overcome his or her disability and perform the employment requirements.
  3. You have consulted with the employee and given him or her every reasonable opportunity to provide relevant information to the above matters.
  4. If the employee is receiving weekly benefits under workers’ compensation, there is no obligation to provide suitable employment.
  5. The dismissal is not unduly harsh when considering the employee’s length of service, employment history and the impact of dismissal on him or her against the impact of the incapacity on your business.
  6. The fact that the employee is exercising a legal entitlement to take sick leave is not a factor in the decision to dismiss (rather the sole reason for dismissal is that the employee cannot meet the genuine and reasonable requirements of the role).
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