Most employers would not dream of dismissing someone simply for calling in sick, but what if an extended absence due to sickness or injury results in your business suffering?

Employers are not generally obliged to hold jobs open indefinitely. However, it’s important any dismissal is justified and properly carried out. If you get this wrong, you could face a personal grievance.

Comply with the employment agreement

Employment agreements bind employers.

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

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.

Consider the role

Ask yourself: Is the role vital to business operations? Would the employee have been employed long-term if she or he were not sick?  How long was the employee with the employer before falling sick?

It’s more likely the dismissal will be “justifiable” if the employer can establish that the role is important for day to day business operations, and not a role where others can readily fill in for the sick employee on a temporary basis.

Consider the illness or injury

What is the nature of the illness or injury? How long has it continued? What are the chances of recovery?

The answers to these questions will help you decide whether dismissal is really necessary.

For example, an office worker with a broken leg may expect to be able to come into work after a few days rest and recovery. A dismissal would be unwarranted and unjustified in those circumstances.

At the other extreme, a doctor who suffers an irreversible brain injury should not be encouraged to pick up the scalpel and start performing difficult surgeries. Dismissal (after considering redeployment options) would clearly be justified, provided the proper processes were followed.

Consider alternatives

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

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

Procedural fairness

Once 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.

It is usually worth taking some advice at this point, because an unfair process may lead to a personal grievance being brought against you even if dismissal was justified.

Usually, a fair process will require clear communication. This means letting your employee know in advance that dismissal is being considered, giving your employee the opportunity to seek legal advice or support, listening to your employee’s views and considering those.

A decision to dismiss should only be made after completing a thorough and fair decision-making process.