Too Sick to Work - Can You Dismiss?

Discussing a proposal to dismiss an employee on long term sick leave is an essential step in the dismissal process – even if the employee is off work for several weeks due to ill health. Henry Cooper, a senior shepherd at Mt Pember Station (MPS), was dismissed for medical incapacity following heart surgery. The failure to meet with Mr Cooper cost the employer $18,500 in wages and compensation. 

Mr Cooper suffered chest pains at work and shortly after had surgery. He remained in hospital for a month. He provided a medical certificate which indicated his rehabilitation could be several months. 

A few days later the employer wrote to Mr Cooper asking for further medical information and advising they would have a meeting with him to decide if they could keep his position open. The employer claimed Mr Cooper’s absence was putting pressure on everyone else. Mr Cooper provided the additional medical information which said he was likely to be off work for a total of three months, and thereafter would need to ease himself back to work. 

Without meeting Mr Cooper, MPS terminated his employment giving seven days’ notice. On the last day of his notice Mr Cooper obtained clearance to return to work on light duties and informed his employer. They didn’t respond. Mr Cooper subsequently raised a personal grievance. 

It is important to note there is no obligation on an employer to hold a position open indefinitely for a sick employee. However MPS failed to meet a number of their obligations. They didn’t meet with Mr Cooper to consider his feedback having said they would. While he was still an employee Mr Cooper advised he was able to return to light duties, but the employer failed to consider alternative duties. Finally the claim other staff were under pressure because of Mr Cooper’s absence was proven to be incorrect. As is often the case, the devil is in the detail.