Most employers would not dream of dismissing someone simply for calling in sick. But what about cases of extended absences due to sickness or injury?

Employers are not generally obliged to hold jobs open indefinitely. However, any dismissal must be justified and properly carried out.

If your employer gets this wrong, you may be able to raise a personal grievance and ask for your job back or compensation.

Has your employer complied with your employment agreement?

If provisions for sick leave or pay are more generous than minimum entitlements (currently 5 days paid sick leave after 6 months service), then your employer has to comply with the agreement.

Similarly, where any process is set out for dismissal, it must be followed. Some agreements will specify what happens when employees take long-term sick leave. Employers need to follow these processes in the agreement.

Was the dismissal justified?

It is more likely the dismissal will be “justifiable” if you have a long-term illness (ie not just a short term incapacity). The nature of the illness, its duration, and the chances of recovery are all highly relevant to whether the dismissal was truly necessary.

The role itself is also relevant. Can you do the work even though you are sick or injured? If so, dismissal is unlikely to be justified. Consider the office worker with a broken leg for example. That worker would expect to be able to perform most duties, so dismissal would be unjustified. In contrast, a doctor who suffers an irreversible brain injury should not be encouraged to pick up the scalpel and start performing difficult surgeries. Dismissal in that case may be justified (if no alternative roles are suitable), provided the proper processes were followed.

Even then, dismissal may not be justified. Dismissal is more likely to be justified if your role is important for day to day business operations, and not a role where others can readily fill in.

Did your employer look at alternatives?

Before deciding to dismiss, an employer should consider alternative arrangements. For example:

• Could they hire a replacement on a fixed term contract?
• Could they allow you to work with reduced duties or hours?
• Is working from home a possible and viable solution?

While an employer does not always have to accommodate an employee, it is important that options are considered where these are realistic.

Was a fair dismissal process followed?

If the employer is satisfied that dismissal could be justifiable, the employer should follow a fair process. What will constitute a fair process in the circumstances will depend on the particular case.

Usually, a fair process will require clear communication. This means letting you know in advance that dismissal is being considered, giving you the opportunity to seek legal advice or support, as well as listening to, and considering your view (you should if responding to your employer include alternative arrangements for work to be completed).

A decision to dismiss should only be made after completing a through decision making process.

Lack of a process, or an unfair process, may be grounds for a personal grievance – even if the dismissal was substantively justified.