Q: We run a small business and one of our workers has a permanent medical condition that causes him to take an excessive amount of sick leave. This is having a detrimental effect on our business. Can we dismiss him for not fulfilling his expected duties due to the amount of sick leave he is taking?

A: It is unlawful to treat an employee adversely (e.g. to dismiss them) because they are absent from work due to illness or injury. However, this prohibition will not apply where an employee’s employment is terminated because they are absent for 3 months or more (consecutively or cumulatively in a 12-month period) and they are not on paid sick leave for the duration of the absence.

However, dismissal may still attract liability under other laws such as anti-discrimination legislation.

You should raise the issue of the employee’s absence with them and ask whether there is anything you need to do to accommodate any illness or injury affecting their ability to perform their duties. This might include asking for their authority to write to their treating doctor to get a medical report about the impact of their condition upon their ability to safely perform their duties.

If you could reasonably accommodate their condition, discrimination law requires you to do so unless it would impose unjustifiable hardship upon your business. If there is nothing you can reasonably do to accommodate their condition and they reach the 3-month absence mark, you could dismiss them for incapacity.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Personal/carer’s leave for current advice.