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ARTICLE · 05 AUGUST 2014

Adverse action claims available despite lengthy absence from work

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Employers should tread carefully when making any decisions around possible termination of ill or injured employees.

AustraliaEmployment and HR
Richard Ottley
Richard Ottley
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IN BRIEF

The Federal Circuit Court has dispelled any lingering doubts as whether or not employers can safely terminate employment following a lengthy absence from work, and without potentially facing discrimination claims arising from the termination.

THE FACTS

This issue arose in the context of termination of an absent employee, a Mr McGarva, who had been seriously ill for some time with the diagnosis of grade 4 stomach and liver cancer. The employee kept his employer informed as to his illness and his progress. Having been absent from work for around 10 months (the latter part on unpaid leave), Mr McGarva indicated by email, that he was looking to return to work 2 to 4 weeks later.

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