Termination on medical grounds in Australia

It may come as no surprise that an employee cannot be terminated from their place of employment due to a temporary illness or injury causing their absence. The Fair Work Act and relevant State or Territory workers compensation laws protect employees from termination based on medical grounds and unlawful discrimination due to harsh or unjust dismissal. Notwithstanding, there are some instances where an employee can be validly terminated on medical grounds in Australia. Read on to find out more.

What are the laws regarding termination on medical grounds in Australia?

The?Fair Work Act?prohibits an employee from being terminated for certain reasons, including if the employee has been temporarily absent from work due to an illness or injury. A temporary absence includes an absence where the employee is away for three months or less, and the employee will take either paid or unpaid leave. After three months, the absence can no longer be considered temporary.?

If the employee can prove that they are able to perform the duties of their job even after a period of absence from work, the courts have determined termination of employment to be considered harsh and unreasonable.?

An employer will not be in breach of the Fair Work Act if they dismiss an employee who has been absent long-term due to an illness or injury, if the employee cannot perform the key requirements of their role. An employer can be protected from an adverse action claim in this instance. The inherent requirements of a job may include the ability to perform the necessary functions, productivity requirements, work as part of a team in the organisation and work safely meeting?Occupational Health and Safety?standards.

What if the injury or illness is work related?

If an employee’s injury or illness is work-related then they may be able to submit a?WorkCover claim. The suite of legislation that considers a case of dismissal for incapacity includes the Fair Work Act, the Fair Work Regulations and relevant WorkCover legislation. This can be State or Commonwealth based such as Comcare Legislation. The claim process relevant to your state can be found online at Work Safe.?

What work adjustments may be available?

In order to lawfully terminate an employee on medical grounds due to illness or injury, the employer must have attempted to provide the employee with reasonable adjustments to accommodate their illness.?

Adjustments include the possibility of offering an employee a different position that would suit their injury, a different version of their current position with less tasks, or other arrangements such as working from home. If making such adjustments would cause justifiable problems to an employee’s business then they may lawfully terminate the employment.?

Employees who have worked for the same employer for over a year can request a flexible working arrangement. Employers may be able to adhere to these changes on a case-by-case basis, including modifying work hours, patterns of working and location of work.?

Where is it not discrimination for termination on medical grounds?

It is not discrimination if the actions taken by an employer, such as termination:

• Are allowed under law,
• Do not relate to protected attributes, or?
• Is based on the inherent requirements of the job position.

What are recommendations for employers when an employee is on leave for medical grounds?

We recommend that employers ensure they:

• Keep in contact with the employee while they are away,?
• Keep medical certificates or contact a health professional for advice,?
• Keep records of the employee’s absences and communications about their illness or injury, and?
• Seek legal advice.

Get a Lawyer to assist you?

It is crucial to seek legal advice if you are in a position to terminate an employee due to illness or injury. Even if the termination is not unlawful, it is imperative to ensure that the termination process is fair and equitable so that a claim can be avoided.?

Click?here?to book a FREE consultation with one of our highly experienced solicitors today, or contact us at [email protected] or by calling 1300 988 954.