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THE LONG-TERM SICK

 
 
 

How to manage sick or injured employees to reduce your risk.

So, you have an employee who is long-term sick – maybe from an illness, maybe from an injury. The key aspect should be a supported return-to-work, to ensure you retain their knowledge and IP, as well as a focus on building the right culture.

However, there are times when you reach the end of this road and you need to make decisions about terminating an employee who has been long-term absent from work lawfully.

It is best to seek specialist advice – without a doubt it is a mine field given that the illness or injury will complicate matters, both physically and emotionally for the employee.  As an Employer, you need to be fair and careful to avoid discrimination or unlawful termination.

It is relevant to look at:

  • the service of employee

  • patterns in absences prior to this long-term absence

  • length of this particular absence

  • paid or unpaid leave, or a mix of both (this point has a direct effect on what an Employer can do)

 
 

Situations where you cannot terminate for sick leave absences:

  1. An employee on WorkCover – this is a breach of the Fair Work Act and Workers Compensation laws in all States;

  2. An employee on the basis of illness or injury alone – this is a breach of General Protections under the Fair Work Act, as well as breaching Anti-Discrimination laws;

  3. An employee on the basis of illness or injury for “temporary absence” – i.e., a series of short absences, or less than 90 days absence over a period of 12 months.
    You can, however, manage absenteeism from work – that’s a different topic all together!

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Onus of Proof

The Onus of Proof in these cases is important to know before you make a decision.  In the case of termination of an employee for long-term absence for sickness or injury, it is up to the Employer to ‘prove’ the decision was reasonable.  It is not up to your employee to prove their case, only on the Employer to prove theirs.

Any Commissioner will look at the reason (lawful / unlawful), your actions, correspondence and behaviour before, during and after the termination.

What can an Employer do, while reducing risk?

  • All employees have a right to take sick leave, even if you believe the leave is not genuine;

  • Make sure you get medical certificates and your company policy states the circumstances of when these can be required;

  • Follow up ‘patterns of absences’ immediately;

  • Deal with a long-term sick employee in a fair and reasonable manner.

It is reasonable to take the following steps:

  • Advice from their medical practitioner as to the condition;

  • Anticipated length of the illness / injury;

  • Ask the GP how the medical issue impacts the role the employee needs to perform.

When can you terminate?

  1. Generally, if an employee has had 90 days absence from work due to illness or injury over a 12 month period, then you can lawfully terminate. Conversations and correspondence warning the employee need to occur prior.

    You cannot terminate for 90 days absence if the ENTIRE period of leave was paid sick leave – i.e., the employee has accrued the sick leave entitlement and therefore is “protected” from being terminated as it is an entitlement.

    Note:

    Other types of leave don’t apply, and if you agree to allow an employee to dip into other leave to assist, then this may not be considered to be part of the 90 days absence.  Contact us to assist you further!

  2. If the Employee can no longer perform the core parts of the role in which they were employed for.  You need to be careful that you are not discriminating, and that you have the ability to prove, from medical advice provided, that this is the case.

All in all, if return-to-work options don’t work for your long-term sick employee, you, or your business, then contact us to help you work through the situation practically and swiftly to reduce your risk and obtain an outcome.

 
 
 
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