Home - Question from Colin Imms ([email protected])
May 14, 2021

Question from Colin Imms ([email protected])

Hi.

We have a member of staff who works in a role that requires some physical exertion in that he attends work sites, walks around a lot and needs to be physically able to do so. He has had issues with his knees for some time but this has been managed.

The worker recently had an issue with his heart at work, it required him to be taken by ambulance to hospital and he underwent surgery. He is now at home recovering and isn’t expected to be assessed by his doctor to be ‘fit’ for work for, perhaps, 6+ weeks.

Because of this recent surgery, and the previous issues with his knees, we do not think we can put him back in the same role that he was in prior to the surgery. It is also clear that there are no redeployment options within the company to put him into. We therefore see the option of terminating his employment likely to be the most appropriate course of action.

To do this I assume we would need a medical certificate from a doctor saying that he is not physically capable of doing that job anymore, and given there is no other suitable role in our company for him then we could proceed.

I wanted to check on what process should be followed in this situation, I do not want to do the wrong thing by the employee, but conversely need to do the right thing by the employer.

Your advice would be greatly appreciated.

Thanks.

Colin

Hi Collin,

It is beyond the scope of the Handbook to provide specific advice in relation to this employee. However, we make the following general comments below.

It is unlawful for an employer to dismiss an employee for a temporary absence from work due to illness or injury (being 3 months, whether consecutive or within a 12 month period). Once this period has expired, employers are still prohibited from discriminating against an employee because they have a disability and must make any reasonable adjustments necessary to allow the employee to perform the inherent requirements of their role. An adjustment will be reasonable unless it would result in an unjustifiable hardship to the business. This is a high bar.

That said, it is not discriminatory to dismiss an employee because they are incapable of performing the inherent requirements of their role for the foreseeable future, even with reasonable adjustments. In order to establish this, an employer will require medical evidence and may need to direct the employee to attend a fitness for duty examination.

Provided the medical evidence supports an ongoing incapacity, an employer will have a valid reason for dismissal. However, to successfully defend against an unfair dismissal claim, it must adopt a procedurally fair process, including putting the findings to the employee and giving them an opportunity to respond to the assessment of capacity and any decision to dismiss. We suggest that you seek legal assistance with this process.

If required, we would be happy to assist you on a commercial basis if you contact [email protected]

Kind regards,

Matthew Gough

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