16. Dismissal for illness / injury

Illness may be grounds for dismissal of an employee if the condition adversely affects the employee's ability to carry out duties the position requires. To consider dismissal for illness employer’s will need to take into account many aspects. There may be a requirement later on to prove incompetence, non-performance of duties or the inability of the employee to complete tasks due to the illness, as well as fairness and correct procedures on the part of the employer. The law requires employer’s to give employee’s a 'reasonable' period to recover from an illness. To determine what is reasonable will vary in each case.

If an employee brings a grievance against his/her employer for unjustified dismissal, the employer also needs to be able to prove fairness in every action taken and that the situation had been carefully examined before deciding to terminate the employment of the affected employee. The gathering of medical information needed by the employer prior to deciding to dismiss will require written consent from the employee in accordance with the Privacy Act and the Medical Information Code.

Prior to deciding on dismissal, and as part of the initial inquiry, employer’s do not need to know specifics of the illness or injury as much as they need to know:

• If the illness is curable.
• Whether or not the illness is likely to be long term.
• When the employee will return to work capable of performing normal duties.
• What sort of rehabilitation is required.
• Whether a return to work to perform the normal tasks of the position would delay the healing process or aggravate the condition.
• Whether the condition would endanger other staff or clients through infection or an inability to perform the tasks to the standards required.

The medical practitioner and the employee involved would provide this information. Employer’s are not required to make a judgement call regarding a medical condition and are advised to obtain all the facts of the case in writing.