KEY POINTS:
I have had a lot of sick days since I started my job a year ago because of a medical condition. I have always had this condition and it is unlikely to improve. I have had times when I am very unwell for several months and then times when I feel quite a bit better. Lately, work has been really busy and this has seemed to make my condition worse. I have had several weeks off work. Now my doctor has signed me off work for two months. Other members of my team complained about me to our manager. Even though my employment agreement says I can have unlimited sick leave I have been told to come to a disciplinary meeting and that the process might result in my dismissal for medical incapacity. Can I lose my job?
Employers don't need to hold jobs open indefinitely if employees are unable to carry out their duties because of medical incapacity. Employers must make fair and reasonable decisions, but there is no requirement as such to be "generous and kind". The key question is how long is it reasonable for your employer to hold your job open?
This will depend on the nature of your medical condition and the nature of your job. I am not sure what your medical condition is.
Before your employer makes a decision about your employment it should consider all these things:
* The terms of your employment agreement, especially your sick leave clause and any clause dealing with medical incapacity. You have a right to unlimited sick leave, so your employment cannot be ended if you are likely to return to work soon. But the unlimited sick leave clause does not mean your employment cannot end for medical reasons.
* The nature of your job, including whether you hold a "key position" and the practicalities of covering your absence. For example, dismissal of an employee with a notifiable disease was justified where the employee was working with food.
* The nature of your condition - how long it has continued and what the prospects are for recovery. A dismissal was found to be unjustified where an employee was dismissed for medical reasons only one week after suffering a heart attack.
* How long you have been employed. In your case, you have been employed a year. If you had been employed longer, your long service would be likely to make the threshold for your dismissal higher. You are entitled to take a support person or representative to the disciplinary meeting.
You should take along up-to-date medical information about your condition and prospects of a return to work. If you need more time to get this information, you should ask your employer to postpone the meeting. I suggest you obtain a full medical report from your doctor.
If your employer is considering dismissing you, it should explore alternatives to dismissal. So you could discuss alternatives with your doctor before the meeting. For example, can you work reduced hours, work from home, or carry out different duties, until you feel better? Are there adjustments your employer could reasonably make to your position, perhaps so you are not so busy, that would make your condition more manageable?
If you think your employer has some responsibility for your condition, it is important you explain this in the disciplinary meeting. You must give your employer a chance to address anything at work that is contributing to your illness (for example, reduce your workload or stress). If your employer then fails to do so, and your condition worsens, you may have grounds for a personal grievance. For example, if your employer is aware that a heavy workload triggers your condition but gives you an unreasonably heavy workload that causes you stress, you may have grounds for a disadvantage claim. Or you if you resign/are dismissed because of your worsened medical condition, you may have grounds to claim unjustified dismissal.
In conclusion, the nature of your job and illness are key to the outcome of your disciplinary process. The Employment Relations Act 2000 requires parties to be active and constructive in maintaining a productive employment relationship by being, among other things, responsive and communicative. So your employer should follow an open and transparent consultation process with you. Your employer should consider all your medical information before it makes any decision about your employment.
