Posted on: Jul 20, 2012

Employers are not expected to keep a sick or incapacitated employee’s job open for an indefinite period. However, the dismissal of a sick or incapacitated employee must be substantively justified and procedurally fair.

Dismissal of an employee who is ill or who has become incapacitated must only be done after consultation with the employee. The employer should communicate regularly with the employee about the employee’s progress, and should ask the employee for a prognosis regarding the condition and likely return to work.

The employee should be told if the employer cannot sustain the loss of an employee for any length of time, and the employer should discuss the situation with the employee. If, after viewing medical certificates and a medical prognosis, the employer considers that a return to work within a reasonable time frame is unlikely and dismissal is necessary, the employer should communicate this to the employee and give appropriate notice of termination.

Some of the factors an employer needs to consider when determining whether to dismiss a worker for incapacity include:

• whether there are any terms in the contract relating to absenteeism due to an ongoing sickness or injury
• whether the employee was likely to be employed long-term if he or she had not been incapacitated
• the position held by the employee (whether it was a position which must be urgently filled)
• the nature of the illness or injury, and in particular how long the incapacity has continued and the    prospects of recovery, and
• the length of service of the employee to date.

There are no set rules around the minimum timeframe before an employer can dismiss an employee for incapacity, however as a guideline we recommend not considering this as an option until the incapacity stretches beyond a period of 3 months.  As always, the unique circumstances of each case will determine what would be considered “fair and reasonable”.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.