Sometimes employment law can be difficult to comprehend. Here are three common work place situations and their legal ramifications .
1: DISMISSAL DUE TO ILLNESS
There are three potential areas of legal exposure:
· Unfair dismissal;
· Unlawful termination; and
From time to time an employee will have to leave your employment due to long term health issues. They may decide to resign or you may have to actually consider dismissing them. It is beneficial to consider as many ways possible to help them back to work – dismissal should be a last resort and could be deemed unfair if not managed properly.
If continued employment is no longer achievable because there are no reasonable adjustments that can be made, it may be fair for you to dismiss them.
The Fair Work Act 2009 states that an employee must not dismiss an employee because the employee is temporarily absent from work due to illness or injury.
The Fair Work Regulation 2009 provides that it is not a "temporary absence" if the employees absence from work extends for more than 3 months, or the total absences of the employee, within a 12 month period, have been more than 3 months. The employee still requires a valid reason to dismiss the employee, even if the employee has been absent on unpaid leave for three months or over.
We suggest you ask the employee to provide medical information on his capacity for work and what support he might need to return to work.
2: EVIDENCE OF ILLNESS
You can insist on employees providing evidence that would satisfy a reasonable person that they are entitled to sick leave, for example, a medical certificate or statutory declaration. That being said there is no specific timeframe as the timeframe required is "as soon as practicable".
For this reason you should devise a written policy that stipulates that your employees provide such information within a specific timeframe. Your policy should also specify that your employees inform their manager directly of their absence (when possible), or phone their manager within a certain timeframe to explain why they can not make it to work and when they expect to return.
3: NOTICE OF REDUNDANCY
When dismissing an employee it is necessary to give them notice. The notice commences when the employee tells the employee that they want to end the employment. If you notify them of their redundancy just before leave, the time spent on annual leave will count towards their notice period.