Incapacity
An employer may dismiss an employee who is incapable of doing his or her job for a period that the employer cannot reasonably be expected to sustain. Usually, dismissal for incapacity occurs for health reasons. When an employee is physically incapable of doing his or her job, there comes a point at which the employer may dismiss the employee and appoint a replacement.
Process
In determining the point at which an employer may consider dismissal for incapacity, the following factors are relevant:
- any timeframe specified in the applicable employment agreement or policy
- the extent to which the employer’s business is affected by the employee’s absence
- the employer’s ability to appoint a temporary replacement, and the cost of doing so
- the nature and extent of the employee’s incapacity, and the likelihood of recovery. Where the incapacity is caused by a health issue, the employer should request appropriate medical advice. Sometimes it may be appropriate to seek independent or specialist advice for this. However, employees have the right to refuse to provide an employer with access to his or her medical information. If an employee is not willing to provide such information, the employer is able to make a decision based on the information the employer has
- whether reasonable adjustments could be made to the employee’s work, or whether an alternative position might be offered, to enable the employee to continue in employment
- whether the employee has used up all of his or her sick leave and other holiday and leave entitlements.
As with the other reasons for dismissal, the employer must advise the employee that he or she is potentially facing dismissal, provide the employee with all of the information that the employer is relying on, and give the employee an opportunity to comment on that information in meetings at which the employee is able to be represented. It is common for a dismissal for incapacity process to take a number of weeks, if not months, and for there to be a number of meetings or exchanges of information.
These processes can be frustrating and difficult for all concerned. They often involve difficult decisions and it will often be sensible to get some advice.
