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You can be dismissed because of your health!?!

Updated: Feb 28, 2020

If you require significant time off due to sickness, injury, or mental health then your employer may have grounds to dismiss you; but only if it’s done fairly. As with any dismissal, your employer must ensure that the dismissal is substantively and procedurally fair.

Substantive Fairness`

When questioning the substantive fairness of the dismissal, the question we must ask ourselves is: “Does the employer have grounds to consider terminating the employee’s employment.” In considering a termination on the basis of medical incapacity, we must consider:

  • What is the nature of the sickness, injury or mental health impairment?

  • If the employee is injured, were they injured at work?

  • How long has the employee been off work?

  • How long is the employee forecasted to be off work?

  • How easily can the employer cover the employee’s shifts?

  • What resources does the employer have to cover the employee’s shifts?

  • Can the employee return on light duties or reduced hours?

  • What are the terms of the return to work plan?

  • What are the terms of the employment agreement and relevant policies?

  • How communicative has the employee been throughout this process?

Even after considering all these questions, we must ask ourselves; “in all the circumstances, is this a fair and reasonable decision?” As with every aspect of employment law, this is not an easy question to answer. It involves weighing up all aspects and looking at relevant case law. If you have any questions, please contact me for a free consultation.

Procedural Fairness

It is equally as important that an employer conducts the dismissal in a fair and reasonable manner. This means that an employer is required to:

  • Raise its concerns with the employee prior to making any decision regarding the employee’s employment.

  • Engage in a thorough and meaningful consultation process with the employee.

  • Consider all the circumstances of the situation, including those listed under the “substantive” heading of this article.

  • Provide the employee with a reasonable opportunity to recover.

  • Present the employee with its preliminary decision on the matter, including its concerns and reasoning.

  • Provide the employee with an opportunity to respond to the preliminary decision.

  • Provide a written final decision on the matter.

The consultation process is often lengthy. This is because the employee will be required to gather medical information, and may be required to undergo further testing from an independent medical practitioner. In some instances, the employee may not be in a position to respond to the employer’s concerns in a timely manner, and allowances will need to be made for this. If you require assistance through a medical incapacity process, please contact me to discuss representation options.

Human Rights Act 1993

The medical incapacity process become more complex when considering the Human Rights Act 1993. Pursuant to the Act, an employer must not discriminate against an employee on the grounds of disability. The act defines a disability as including:

  • Physical disability or impairment;

  • Physical illness;

  • Psychiatric illness;

  • Intellectual or psychological disability or impairment;

  • An other loss or abnormality of psychological, physiological, or anatomical structure or function;

  • Reliance on a guide dog, wheelchair, or other remedial means;

  • The presence in the body of organisms capable of causing illness.

However, the Act does prescribe an exception to this rule. That is, an employer can treat an employee differently where:

  • The employee can only perform their duties satisfactorily only with the aid of special services or facilities and it is not reasonable to expect the employer to provide those services; or

  • Where the environment that the employee works, or the nature of the employee's duties, would create a risk of harm to that person or to another person, and it is not reasonable to take that risk.

In considering the definition of a disability, it is likely that an employee subjected to a medical incapacity process may also need to consider the impact of the Human Rights Act 1993 on their situation. This means that an additional consideration for the employer is; "is it reasonable to expect the employer to provide special services or facilities to enable the employee to satisfactorily perform their duties?" These questions become important when considering employees with long-term impairment or disability.

Get in touch

Are you concerned that your health may impact your employment?

Has your employer treated you unfairly due to your health?

Have you been dismissed on the grounds of medical incapacity?

Please get in touch for a free and confidential discussion.


Ashleigh Fechney

LLM(Hons), BA

027 555 999 5

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