Q: Since the start of this year, one of our administrative employees has taken an excessive amount of sick leave due to depression. She has been employed with us since May last year and has previously had time off for the same reason, but this year has been more extreme. She is seeing a psychiatrist and has provided medical certificates for her time off.

Although she has tried a couple of times to return to work, she only lasts a few days before taking more time off. We have so far been very patient and supportive, but this is extremely disruptive to the business and the current situation leaves us regularly without support, but unable to replace the employee.

We realise it’s extremely risky to dismiss someone in this situation, but we’re keen to resolve this issue since at present it seems as though it’s likely to continue indefinitely.

Are you able to advise what, if anything, we’re able to do in this situation and how we can manage our risk if we decide to go down the path of employment termination?

A: We recommend that you get formal legal advice before dismissing an employee in these circumstances as there are a number of risks to the business in getting it wrong. However, generally speaking, it is unlawful to terminate someone's employment on the basis of temporary absence from work due to illness or injury unless the employee has been:

• on personal leave for more than 3 months; or
• absent for a total of 3 months in a 12-month period and at least some 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 also, in this instance, be able to dismiss the employee on the basis that she does not have the capacity to perform the inherent requirements of the position (which includes being available to work). Of course, you would need to observe unfair dismissal laws in doing so. You may wish to ask her to undergo a medical assessment to assess her ability to perform the inherent requirements of the position before you go down this path. This should be paid for by the company. You should make further enquiries of the employee to see what adjustments she
would need, within reason, to return to work in some capacity.

If there is no reasonable adjustment you could make for her, or if it becomes apparent that she will not make a recovery that will allow her to work at full capacity, you will need to revisit this issue with any new information and make a further assessment as to whether you wish to proceed with dismissal on the basis of 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 and Mental health in the workplace for current advice.