Q: An employee has become incapacitated due to illness and he is unable to carry out his duties or attend his workplace. This situation has been going some a number of months and he no longer has any leave to cover his salary. Are we able to terminate his employment?

A: There are three potential areas of legal exposure:

• unfair dismissal;
• unlawful termination; and
• discrimination.

You won’t have unlawful termination exposure if the employee has been absent from work due to illness or injury for 3 months (or cumulatively in a 12-month period).

You won’t have discrimination exposure if the employee can’t perform the job requirements and there is nothing you can reasonably do to enable this performance.

You will avoid unfair dismissal exposure if you give the employee a reasonable opportunity to demonstrate that he or she can do the job or there is something you can reasonably do to help that performance.

We suggest you ask the employee to provide medical information on his capacity for work and what support he might need to return to work.

If he or his doctor suggest some adjustments, you are required by equal opportunity and anti-discrimination legislation to make those adjustments if they are reasonable, i.e. do not impose an unreasonable hardship upon your business. You would need very good business grounds to refuse.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Dismissal for current advice.