IRHR 16_01 A

Can you dismiss an employee while they are on leave?

Any disciplinary procedures need to be fair and reasonable – but is this ever possible when an employee is on leave?  Aside from moral issues, is it ever legally acceptable to terminate someone who is on leave?

While there is no absolute prohibition around dismissing an employee on personal/carer’s or annual leave, doing so would put the employer at risk.  The question asked would be – why a termination was necessary while the employee was on annual or personal/carer’s leave, as it is generally short term?

Termination while on personal/carer’s leave

If an employee is on personal/carer’s leave, unless their absence on unpaid personal/carer’s leave extends for more than three months or total absences of 3 months in a twelve month period, it is unlawful to terminate them for the reason that they’ve be absent due to illness.

  • Case One: If an employee is suffering with an illness that means they are away for two weeks, any termination for that absence is unlawful.
  • Case Two: If an employee is suffering from an ongoing illness that means they need months off, once they have been absent for three months the employer could put in a process leading to termination on the basis that they are unable to fulfil the inherent requirements of the role.

In this scenario:

  • the employer must engage with the employee and their doctor – asking for a prognosis ie timeline for possibility of returning to work and normal duties
  • the employer must assess whether it is possible to keep their job open with a temporary worker – if not possible they could move towards termination
Note:  If you are looking to terminate an employee, who is on long term sick leave, please contact Brismark for advice before proceeding – as it needs to be handled carefully, both from a legal and moral perspective.

Is the termination urgent?

Another question that might be raised, if you terminate an employee while on annual/sick leave, is:

‘…why couldn’t you postpone the process until the employee returned to work?’

The only circumstance this would be acceptable is if the company is ‘closing its doors’ ie shutting down completely and no longer continuing to operate.  In this situation, all employees would be notified, including those on leave.

What if misconduct is involved?

If a situation arises, while an employee is on leave, that they have been found to have engaged in ongoing misconduct and this conduct could continue to occur while they are away – for example, stealing from business via IT system – the employer could have grounds to start the dismissal process before they return.  However, you need to ensure ‘procedural fairness’, that is providing the employee with an opportunity to respond to allegations and there may be a need for further investigation.  Simply terminating without a meeting makes it more likely that the employer is going to miss those procedural steps and the employer could find themselves on the wrong end of an unfair dismissal claim.

As far as is possible, the employer should not interrupt the employee’s leave – particularly if it is personal/carer’s leave.  If you deem there may be a risk to the business, due to ongoing misconduct, look at other avenues to prevent or reduce this risk in the interim and address with the employee on their return.

Termination while on parental leave

Approaching an employee on parental leave is slightly different – primarily due to the length of their leave being more substantial.  For example, if there was going to be a redundancy, the employer would have to fulfill two requirements:

  1. As per the Fair Work Act – provision that is someone goes on parental leave and there are subsequent changes to their workplace, the employer is obligated to let them know ie downsizing, relocation, merging entities etc

 

  1. If the employee is covered by an award or enterprise agreement they contain a clause requiring the employer to consult with the employee about significant workplace changes

Simply dismissing an employee on parental leave could lead to the suggestion that the dismissal was based on leave discrimination.  Where downsizing and redundancies are occurring, there is nothing stopping the employee on parental leave being chosen for redundancy – provided that they are not being chosen purely because they are on leave and the proper processes are followed.

Workplace Injuries

When it comes to workplace injuries, businesses operate under state and territory compensation laws, so this legislation can vary.  Some provisions under these laws protect those who are absent due to workplace injury and a specified period after the injury, where the sole or primary reason for the dismissal is because of the employee’s absence on workers compensation.  The current ‘specified period’ under Queensland law is 12 months.

If you are in doubt on how to progress in terminating an employee, you can seek expert advice by contacting Brismark Business Services on 3915 4213 or [email protected], before making a decision.

Note:  The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: HC Online, by Chloe Taylor, 9 December 2015
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