SCENARIO – As an employer, you employ an employee who injured themselves outside of work two months ago.  Although the employee has not returned to work since his injury, he has continued to provide you with medical certificates which fail to provide a definite timeframe for him becoming fully fit for duty and being able to return to work.

ISSUE – The employee’s absence has increased everyone else’s workload in your business, and it is getting to the point that the employee needs to return to work, or you need to employ someone else to perform his duties.  For how long do you need to wait until you can terminate the employee and employ someone else to fill his position?

THE LAW – The Fair Work Act 2009 (Cth) does not permit you to terminate an employee for certain reasons, which includes an employee being temporarily absent from work because of illness or injury.

Under the law, an employee who is absent from work due to a non work-related illness / injury must provide his / her employer with a medical certificate or statutory declaration within:

• 24 hours after the commencement of the absence; or
• such longer period as is reasonable in the circumstances.

The employee must also continue to provide his or her employee with the required evidence covering all periods of absence.

If the employee fails to do this, then the employer may be able to terminate the employee because of the employee’s absence without the employer contravening this part of the law (you should still seek prior advice before proceeding in doing this).

However, in the above scenario, the employee has in fact been providing you with medical certificates. In such circumstances, what are your rights?

If the absent employee is not being paid personal carer’s leave during the absence (i.e they have used up all of their paid leave, and are now on unpaid personal leave), and:

• the employee’s unpaid absence extends for more than 3 months; or
• the total unpaid absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries),

then you will be able to terminate the employee due to their absence without contravening this part of the law.

Note that even if you are able to terminate an employee who is absent for illness or injury, unfair dismissal ramifications may still arise, and therefore you should always obtain professional advice from Fair Work Centre before taking any steps to terminate an employee.ess or injury, unfair dismissal ramifications may still arise, and therefore you should always obtain professional advice from Fair Work Centre before taking any steps to terminate an employee.