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Medical Incapacity – An Employer's Obligations

Published 01 Dec 2009

While an employer is not required to hold open the job of a sick or injured employee indefinitely, there are a number of steps to follow before an employer dismisses a sick or injured employee.
  1. If an employer wishes to dismiss an employee for incapacity, it should first wait a reasonable time for the employee to recover.
  2. The employer should have precise and reliable medical evidence that the employee is unable to return to the workplace and that there is no firm date stipulated for a return.
  3. The employer should communicate and consult with the employee and the medical specialist on the employer's views about the employee's medical state. Dialogue should include the reasons for those views and the possible risk to the employee's employment because of an ongoing inability to return to the workplace.
  4. There should be no misunderstandings on the medical state of the employee.
  5. The employee must be given an opportunity to have input on the decision to dismiss and have representation in any dismissal meeting.
  6. The employer should avoid permanently appointing another employee to the sick or injured employee's position until the employee has been dismissed and until at least the 12 week time period for raising a personal grievance has expired