Most employers know a successful unfair dismissal claim can be
avoided if they have a valid reason for the dismissal and they can
prove they have followed a procedurally fair process.
But what process should an employer follow when it seeks to
dismiss an employee who has been absent from work because of
prolonged illness or injury?
Termination of employment due to an employee's illness or
incapacity can be a very difficult area, particularly as an
employee in this circumstance may be protected by unfair dismissal
legislation, workers compensation laws, anti-discrimination laws,
or disability discrimination laws.
Under the Fair Work Act an employee is protected from
dismissal when temporarily absent due to illness or injury unless
the employee's absence on unpaid personal/carer's leave
extends for more than 3 months, or total absences of 3 months
within a 12 month period.
