KEY POINTS:
I have been unwell for about six months. I have been trying to keep up with my work but I have had a lot of time off. Last week my doctor signed me off work for two months. Then I got a letter from my employer telling me to come to a meeting about my 'medical incapacity'. The letter says the process could result in my dismissal. I don't want to lose my job and expect to get better soon and be back at work as normal. Can my employer really fire me for being sick?
Employers should handle situations where employees have a long term illness with care. Your employer cannot dismiss you based only on the fact that you will be absent for two months, without considering the surrounding circumstances.
Your employer needs to follow a thorough process to investigate the circumstances of your absence and the effect on your work.
Like any dismissal, a dismissal for medical inacapacity has to be both fair and justified.
As to whether your dismissal would be justified there are several factors your employer should consider, as well as the length of your absence from work. These include:
* The type of job you do. If your position is not key to the business and your work can easily be covered by someone else, your employer will have weaker grounds to dismiss you than a key employee doing specialised work. Your employer should properly investigate the nature of your illness, how long it is likely to affect your work attendance for and how likely you are to recover. Your record of service should also be considered. If you are a long serving employee who has always performed well and had good attendance until recently, your employer will have weaker grounds to dismiss you.
Information in your employment agreement and any workplace policies about dismissals, especially for medical reasons, should also be considered and followed.
* The cause of your illness. If your employer caused your illness, it is less likely to be able to dismiss you for it. It sounds as though your employer will need to find out a lot more about your illness before it would have grounds to dismiss you. It should not dismiss you following just one meeting. The first meeting you have been invited to should be limited to finding out more about your situation.
As well as investigating your situation more, your employer must follow a fair process. Importantly, it must give you a chance to respond to the prospect that you could lose your job and to provide information about your illness and chances of a recovery.
If your employer carries out any of its own investigations, your employer should tell you what it finds out about your situation and what information it will be relying on before it makes its decision whether to dismiss you.
Your employer might ask you for a medical report. You don't have to give this but it could help your situation. Or your employer might ask you to see a medical practitioner it chooses. Again, you don't have to agree to this but it could help you if the medical practitioner says you are likely to recover soon or could return to work doing light duties. If you don't provide any medical information, your employer will have to make a decision based on what it knows.
You could also investigate other options yourself with your medical practitioner. For example, your doctor may not have properly understood the nature of your job when he or she signed you off work. Or your doctor may not have considered whether you could attend work carrying out other sorts of duties. The opportunity for you to do 'light duties' will depend on the nature of your workplace and the nature of your job of course. But if your doctor agrees, this is something you could suggest to your employer as an alternative to dismissal.
As first step, I suggest you speak to your doctor about what is happening. Ask your doctor about your prospects for a recovery and a return to work and whether light duties are an option for you. You should then consider asking your doctor for a medical report to give your employer. If you need more time, you can ask your employer to postpone the meeting. You may also wish to take an employment law specialist with you to the meeting.
* Rani Amaranathan is a solicitor in the employment team of transtasman law firm, DLA Phillips Fox.
