Under S 352 of the Fair Work Act 2009 (the Act) employees are protected from dismissal where they have been temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
What is temporarily absent from work?
It is clear that subject to the Act, employees can take paid personal leave as provided in s 97 for personal injury or illness. Any such paid personal leave entitlements must comply with s 107, which requires the employee to give notice of the leave and its expected period, along with evidence that it is for personal injury or illness.
What is ‘illness or injury’ prescribed by the regulations?
A prescribed illness exists in circumstances where a medical certificate is provided to the employer within a reasonable time, and where a medical practitioner is satisfied that the person is not fit for work as a result of illness.
Thus three requirements apply for an employee to have an illness or injury of a kind prescribed by the regulations’:
1. the employee should provide a medical certificate within 24 hours or a longer reasonable period;
2. the employee should notify the employer and substantiate the reasons for the leave; and
3. the employee should provide evidence that would satisfy a reasonable person that the leave was taken for a personal illness or injury.
What is an extended absence from work?
An employee is deemed temporarily absent from work until he or she has been absent for a period exceeding 3 months following the point that they have exhausted their personal leave and any entitlements to workers compensation, over a twelve months period, and has exhausted all of his sick leave entitlements.
At that point in time an employer may terminate the employee for an extended absence from work.
Terminating employment for extended absence from work
In any termination, a risks exists that the employee may initiate proceedings before the Fair Work Commission claiming an entitlement to the general protections not to be terminated whilst temporarily absent from work.
Therefore, to avoid any such proceedings before the Fair Work Commission, best practices should be applied to ensure that at all times leading up to the termination, the employee was:
- given previous warnings relating to the conduct;
- allowed a support person at any discussions relating to the termination;
- given reasons for dismissal; and
- given the opportunity to respond to the reasons.
Finally, the termination of an employee must at all times include payment of the required notice period as well as payments of the employee’s accrued entitlements.