Medical Incapacity – Four Common Mistakes

Employment matters with thanks to Chapman Employment Relations

Are you looking to possibility of exiting an employee who is not attending work often enough (or at all), due to injury or ill health? Read here to learn about four common mistakes that are made in the process of medical incapacity. 

Not meeting with the employee before reaching a decision

In considering any dismissal you need to be communicative with the employee. 

The primary reason for providing an employee an opportunity to have input is to allow them to provide relevant information that may avert a decision by an employer that dismissal is necessary.

Making a decision to dismiss an employee for medical incapacity without reasonably attempting to meet and discuss the matters may well fundamentally flaw procedural fairness and lead to a decision of unjustified dismissal if a personal grievance is raised.

Not seeking medical information

Employers must make reasonable attempts to ascertain the medical facts before dismissing an employee for incapacity.  You should also ensure the information current – as the medical incapacity process can take some time you may need to seek further medical assessments.

An employee is not required to consent to a medical assessment or release personal medical information, however should the employee not consent, the employer can still make a decision as to the ongoing employment based on facts it can reasonably ascertain.

Following a disciplinary process for genuine illness absences

Genuine illness is not a disciplinary matter, it is an issue of incapacity. In other words the employee is incapable of meeting their obligation to do the work you agreed to pay them for.

Coping too well for too long without the employee

A key component of medical incapacity is to “balance the fairness to the employee and the reasonable dictates of its practical business requirements”.  If an employer has managed the absence/incapacity for a long period of time

without unreasonable hindrance or unreasonable cost to the business then it will be hard to argue an urgent or impending need to dismiss the employee due to the absence/incapacity. It is important to remember the employee continues to accrue annual holiday and sick leave entitlements while they are absent.

…and as always check the employment agreement and any policies you may have to confirm any required process

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