Your rights: Dismissal after accident

Q. My husband had knee surgery for an injury 25 years ago. While at work last year he had a minor accident that aggravated the old injury.

Immediately his employer made him sign a paper stating he would not get accident compensation.

Now we have received a letter stating that his job is no longer available, with no explanation.

When my husband phoned to find out why, his employer said the company could no longer wait for him to return to work. No one else has yet been hired.

When a woman who works for the same company had breast cancer, they held her job for her.

Another person had gout and they held his job.

Has my husband's employment been wrongfully terminated?

A. Dismissals for illness and incapacity sit deep in the greyest of grey areas of employment law.

Employers and employees find little guidance in the case law and none in the statute books.

The best that our Employment Court has been able to come up with is to say that a point occurs when an employer is entitled to say "enough is enough".

Just when that point occurs is uncertain in many cases.

Your husband's employer cannot terminate his employment the moment he becomes unfit for work, as all employers are obliged to keep an employee's position open for a reasonable period until "enough is enough".

The length of a reasonable period can depend on a number of factors, including the amount of accrued sick leave the employee has, whether the employee occupies a key position, whether a temporary replacement can be found internally or externally and the likelihood the employee will make a full recovery.

An employer faced with an injured employee should also consider whether redeployment or retraining is a viable alternative to terminating the employment.

I do not know how long it was between your husband injuring himself and receiving a letter advising "that his job is no longer available".

However, I would be surprised if your husband's employer could substantively justify your husband's dismissal.

It also appears that your husband's dismissal was carried out with little regard to treating him in a manner that was procedurally fair.

I would be very surprised if your husband's employer could justify a dismissal that was conducted by way of a letter.

Finally, it appears that your husband has not been treated in the same way as at least one of his fellow workers.

He may therefore have an argument that he has been disadvantaged due to a disparity in treatment between him and other employees.

In short, I believe that your husband has most likely been unjustifiably dismissed.

His employment agreement should contain a plain English procedure for resolving employment relationship problems.

He should follow that procedure should he wish to challenge his dismissal.

Employment Relations Service website

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