Managing workflows and deadlines during an employee’s absence can be challenging, and even more so when the duration evolves to become ongoing and indefinite. While most employers know the Fair Work Act limits their ability to end an employment relationship because of a “temporary absence due to illness or injury”, the details and operation of the prohibition are often misunderstood. So, what are the key things to know?
The prohibition operates to prevent a dismissal until the employee has been absent for at least 3 months (but in practical terms it can be longer). Unhelpfully, there’s conflicting decisions as to when the 3 months start. Two recent decisions of Fair Work Commission say it starts after the employee exhausts their personal leave. In contrast, a 2006 decision of the Federal Court (which dealt with the predecessor prohibition in the Workplace Relations Act) says the 3 months commence when the employee commences their absence.
While at PCS we have a clear view as to the correct operation of the prohibition, the caselaw ambiguity means employers need to approach this aspect with their ‘eyes open’.
The provision operates as a prohibition only. When the prohibition falls away, it does not create a ‘right’ to terminate the employment. It’s critical to remember the employee may still be able to challenge the dismissal on any of the usual grounds.
Where the illness or injury is work related, longer prohibitions can apply separately under the relevant state or territory workers compensation legislation.
This is a difficult area, but with proper and active management, engaged employers can readily cut through the complexity. People+Culture Strategies regularly lead and support our clients through these processes, and in the design and implementation of practical solutions. The best results are achieved by engaging early, and being active.
