Dismissing employees for extended absence from work often may seem a necessary action to take by Employers. However, the circumstances behind the extended absence will play an important role

in determining whether the dismissal is considered fair and just by the tribunal or the Court.

The federal court case of McGarva v Enghouse Australia Pty Ltd¹ held that an Employer is accountable for dismissing an employee that was absent for 10 months. The employee was suffering from cancer during that period which made him incapable of attending work.

The Employer argued that the employee was not protected from dismissal for being temporarily absent from work due to an illness or injury on the basis that his absence was extended for 3 months and he was not paid personal/carer’s leave during the period of the absence.

However, the Court had an alternative view of the circumstances and came to the conclusion that the Employer did not dismiss the employee due to absence because of illness or injury, rather the reason behind the dismissal was in fact considered to be due to the employee suffering from a physical disability.

As a result, discrimination law was brought into play, which exposed the Employer to the discrimination standards in determining the fairness of the dismissal. Ultimately, the Court examined whether the employee was treated less favourably compared to an employee in the same or similar circumstances who did not have a disability and/or whether he was subjected to a requirement that he could not meet which can only be met by a person without a disability.

Despite the fact that the Employer could have defended the discrimination claim by arguing that the employee could not fulfil the inherent requirements of the job. The Court held that the evidence in this case suggested that the employee would have been able to fulfil the inherent requirements of the job with reasonable adjustments.

Employers need to be cautious when dismissing an employee based on absence resulting from illness or injury due to the fact that it will be critical to clearly identify and prove the reasons for the dismissal.

It is advised that in order to lessen the risk of a claim for unfair dismissal by the employee, you will need to:

  • Consider factors that will determine the impact of the dismissal on the employee, such as their employment history with you and their age; and
  • Provide the employee with the opportunity to respond to the reason for dismissal prior to proceeding with the dismissal.

Generally, as the Employer you will need to ask yourself the following questions prior to dismissing the employee for extended absence:

  1. Is the reason for the dismissal based on the employee not meeting your sick leave notice requirements?
  2. Is the reason for the dismissal due to the employee’s absence extending for more than 3 months?
  3. Is the reason for the dismissal based on concluding that the employee’s illness or injury (i.e. the reason for the absence) means that the employee can no longer perform the job?

If you answered yes to any of these questions, you will need to justify your decision of dismissal to the court bearing in mind the factors that will be considered crucial to your case, which will often require guidance from a lawyer. Consultation with a professional in Employment Law is strongly advised to obtain the required assistance and to tackle these issues.

NB Lawyers offers a legal consultation to all Employers.

For further information please contact Jonathan Mamaril, Principal on 07 3876 5111 or email jonathanm@nb-lawyers.com.au.

Written by

Jonathan Mamaril
Principal & Director, NB Lawyers – the Lawyers for Employers
07 3876 5111
jonathanm@nb-lawyers.com.au


¹ (2014) FCCA 1522

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