At times employers may find themselves in a position whereby an employee is absent from work on an account of illness or injury that is not work-related for a prolonged period of time, and knowing what action to take to manage the situation may be tricky.

This article gives employers tips on how to best manage such a scenario.

1. Keep in contact with the employee

Employers should keep the lines of communication open with the employee, mainly for the purpose of:

• • discussing medical certificates and reports received from the employee;
  • developing a return to work plan (if this is applicable); and
  • making sure that the employee is aware that termination of employment is a possible outcome.

2. Obtain medical information

It is important to obtain medical information from the employee, because with such information an employer will be able to determine whether the employee can be rehabilitated in the short term, or whether dismissal is a more viable option.

An employee must first consent to the employer being able to obtain medical information about the employee’s condition. Alternatively, the employer can also arrange for the employee to be examined by a medical practitioner of the employer’s choice.

Although an employer cannot ask an employee to disclose their medical condition, an employer can ask the employee how their condition will affect his or her ability to perform the inherent equirements of their role.

If the medical information obtained by the employer confirms that the employee is unable to meet the inherent requirements of their role and there is little evidence that they will be fit to return to their former duties in the near future, the employer may be justified in terminating their employment.

3. Can the employee’s position be adjusted?

An employer must do everything reasonably practicable to accommodate the disability or impairment of an employee – unless it will pose an unreasonable hardship on the employer’s business.

To determine whether an adjustment will impose an unjustifiable hardship on the employer’s business, the following factors should be considered:
the business’ financial circumstances:

• • • how much it will cost the business to comply with the adjustments;
    • the likelihood of the employee obtaining suitable employment elsewhere; and
    • the employee’s length of service.

4. Provide procedural fairness

Being able to afford the employee a process of procedural fairness will support the employer if the employee files an unfair dismissal claim once he or she is terminated.

If the employer is considering terminating the employment of the employee, it is very important to provide the employee with the opportunity to respond to both the report and the employer’s view that their employment may be terminated for not being able to perform the inherent requirements of their role. If this opportunity is provided in a face-to-face meeting, the employer must also allow the employee to have someone present to support them.

5. Keep written records

Any discussions that an employer has had with the employee should be recorded, and the employer should also follow up any meetings by sending a letter to the employee for their records.

Unlawful Termination Implications

Remember that if the employee has:

• • • (a) used up all of their accrued personal carer’s leave; and
    • (b) been absent on unpaid personal leave for less than 3 months; and
    • (c) provided the employer with medical certificates covering the entire period of the absence,

then it may be considered unlawful termination if the employee’s employment is terminated within that 3 month period.