Employee Illness/Incapacity

The illness of an employee can be frustrating and costly to a company.

In some circumstances it can be justifiable for an employer to dismiss an employee for illness, such as if the employees illness is likely to affect their ability to perform their work in the long term.

In Canterbury Clerical Union v Andrew and Bevan [1983], Judge Castle stated:

"It is well established law that an employer is not bound to hold open a job for an employee who is sick or prevented from carrying out his or her duties for an indefinite period".

While this may sound simple, think again. As always, process is particularly important. A prudent employer will insist on recent and clear medical information. This information will enable the employer to ensure that the employee will not be returning or unable to return in a reasonable timeframe. The employee should be notified that the employer is concerned with the length of the absence and proper and fair process should be followed (refer procedural fairness on misconduct or serious misconduct).

This is a difficult area of the law and we recommend that if you have any questions in this regard you should ring or email either Robert Thompson or Jonny Sanders.

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