CAN AN EMPLOYER DISMISS AN EMPLOYEE IF THEY HAVE A LONG TERM SICKNESS/INJURY? IN MANY SITUATIONS THE ANSWER IS ... YES.
Remember our recent article on medical incapacity? It's a topical issue in these leaner times, short may they be, so here is extra information to help you:
It's true, it is hard to balance the needs of a business when an employee is injured or ill for a long time, firstly clients tell us we need to get a replacement in but the employee is in the house we need to give to the replacement? Also, how long do we have to keep a job open? We want to be fair but it's very disruptive?
What do we do if ACC want us to keep the job running on light duties and we don't have any?
Well, whilst there is no set figure for how long is too long, legally speaking, 13 weeks, excluding annual holiday entitlement and accumulated sick leave is a good “ball park” figure to work on.
Short term illness of several weeks will not suffice. But often even doctors do not know how long an injury will take to mend. Two weeks sick leave, becomes four etc. So, often you have to wait. There are some dos and don'ts to be aware of, so ring us and talk it through.
Long term illness or absence due to an accident either at work or elsewhere does give rise to the Employer's legal right to end the relationship. This is a dismissal, but it is not really anyone's “fault” in one sense of the word, for example, the employee may have contracted a contagious disease. Legally, it is a breach of contract by the employee failing to perform her/his side of the contract, this gives rise to the employer's right to cancel the contract by dismissing the employee. The employee may want to carry on the agreement but is unable to do all, or some of the duties.
An important part of being fair is to have a discussion before you make any final decision. Employers often have a decision already in mind, but it is always best to defer making a final decision temporarily, and hold a formal meeting to discuss the problem with the employee. There is an old wise saying, justice must not only be done but be seen to be done, so hold a discussion, let the employee put forward their ideas and especially give you up to date medical information.
Some of the main factors to take into account:
- The duration of the employee's illness to date, and the effect this is having on the employer's business;
- The employee's entitlement to sick leave (paid and unpaid);
- The prospects of recovery of the employee and the possibility of them returning to work (which should be based on objective information such as a doctor's report);
- The length of time an employee has been employed with the employer;
- Reasonable steps the employer could take to aid rehabilitation, such as providing part-time or light duties if practicable;
- Exploring whether there are any alternatives to dismissal that are reasonable in the circumstances, especially, hiring fixed term or temp replacements.