It is a question we get asked often by our clients. What happens when an employee has been absent for a long period of time (i.e. in excess of 6 weeks) due to personal injury or illness?
First and foremost, supporting employees who have a long term illness or injury is important. The employee is very likely dealing with their own injury or illness and possibly the financial pressures associated with not attending work.
However, on the other hand, an employee being absent from the workplace for an extended period of time can put additional pressure on existing team members and cause uncertainty.
From a legal perspective, you cannot terminate an employee due to temporary illness or injury. Under the Fair Work Act, an illness is considered temporary if it is less than 3 months (in total) in any 12-month period.
Once an absence extends for longer than 3 months in a 12-month period, the illness/injury is no longer considered temporary – however, this doesn’t mean you can simply terminate the employee.
Below is the recommended process
- During the initial 3 months, you should be regularly checking in with the employee and consulting with the employee’s medical practitioner (if approval has been given by the employee) to see how the business can support in the employees return to work.
- If the absence extends beyond 3 months and there has been no progress or insight into when the employee may be able to return to work, coordinate a meeting with the employee to discuss how he/she is progressing and when they believe they will be able to return to work. Discuss potential return options and what the business can do to accommodate the employee with their illness/injury. Explain to the employee that the organisation would like to consult with the employees Dr to obtain a medical opinion on his expected return to work and whether Dr believes the employee can perform his/her role safely.
- Send a letter to the employees Dr requesting his/her medical insight into the situation. You may wish to organise a face-to-face case conference with the Dr and employee.
- Utilising the information from the Dr, meet with the employee again to discuss. Agree on a potential return to work or some timeframes around when this will occur.
- If the medical evidence states that they can see no ability for this individual to return to work in the medium to long term, this is when you may be having a conversation with the employee around the potential separation of employment. However, it is important at this stage to ensure that the process has been fair and the organisation has done everything they can to try and support the employee in returning to work. If the employee believes they have been unfairly dismissed, they may make an application to the FWC.
If termination is ultimately decided upon the business must be able to show:
- The decision is based on sound medical evidence that demonstrates the employee will not be able to perform the inherent requirements of his or her role for an extended period of time
- That no reasonable adjustments can be made for the employee or reasonable adjustments that have been made have not resulted in the return to work of the employee
- That the process has been procedurally fair – the employee has been advised that you are considering terminating their employment based on their inability to perform the inherent requirements of the role and the employee has been provided with an opportunity to respond to this before any decision is made
- You have complied with any specific requirements under applicable policies and/or the employee’s contract