An employee has been on stress leave for about 15 months. She has used all her personal leave, annual leave and long service leave, supplying medical certificates along the way. What are our options for dismissal?
Generally speaking, it is unlawful to terminate an employee’s employment on the basis of their temporary absence from work due to illness or injury. An exception is when the employee has been on leave for more than 3 months, or they have been absent for a total of 3 months in a 12-month period, and at least some part of that absence was on leave other than paid personal/carer’s leave (such as annual leave or unpaid leave). It appears that you may, in this instance, be past the 3-month mark when you are able to dismiss this employee. This would have to be on the basis that she does not have the capacity to perform the inherent requirements of the position (which includes being available to work) rather than some other discriminatory or unlawful reason (such as exercising her right to use personal leave). Of course, you would also need to observe unfair dismissal laws.
You can make enquiries of the employee to see what adjustments she would need, within reason, to return to work in some capacity. This would include requesting medical certificates and, if necessary, asking for her consent to speak to her doctor. If there is no reasonable adjustment that you could make for the employee or if it becomes apparent that she will not be back to work at full capacity, you will need to revisit this issue with any new information available to you and make a further assessment as to whether you wish to proceed with dismissal on the basis of incapacity. You should appreciate that unfair dismissal laws require employers to give employees reasonable opportunity to respond to a proposed dismissal.
We recommend that you seek formal legal advice before taking any steps that are adverse to the employee, given the potential for liability for the business.