An employer cannot assume that just because an employee has been absent, unwell, from the workplace for longer than a "temporary absence", any ensuing termination will be lawful.

The Federal Circuit Court recently considered a termination following an employee's lengthy absence. The employer in this case made a decision to terminate the employment of an employee due to his absence from the workplace on a period of unpaid leave for a period of ten (10) months and his then inability to return to work on a full time basis. Following the termination of his employment, the employee commenced adverse action proceedings in which he claimed that he had been dismissed because of his physical disability in having to be absent from the workplace to receive treatment for cancer.

The employer argued that the decision to terminate was lawful and not capable of constituting adverse action. The employer had relied upon the "temporary absence" provisions in the Fair Work Act 2009 (Cth) as a guide to determining when a lengthy absence might lawfully give rise to a reason to terminate. Those provisions prohibit termination for a "temporary absence". A "temporary absence" is an absence taken for illness or injury (where notification and evidentiary requirements of the Fair Work Act have been met). However, an absence of this kind will not be a "temporary absence" where an employee's absence extends for more than 3 months (or a total aggregate of 3 months within a 12 month period) where the employee is not on paid personal/carer's leave (however described) for the duration of the absence.

In other words, terminating the employment of an employee for an absence that is longer than a "temporary absence" will not prohibit the discrete termination for temporary absence provisions of the Fair Work Act. However, there are a number of other provisions of the Fair Work Act (and other legislation) that are relevant in an illness-related termination. For example, more general provisions relating to disability discrimination.

His Honour Justice Driver found that the mere fact that termination for the employee's absence was not prohibited by the "temporary absence" provisions of the Fair Work Act was not fatal to the employee's claims about the lawfulness of his dismissal at large. 

Lessons for Employers

This case is a timely reminder of the care that must be taken in considering ending the employment of employees with long-term illnesses.  The fact of a lengthy absence alone will not provide a defence to general adverse action provisions (regarding workplace rights) or disability discrimination laws. Employers should at least seek current and relevant information from the individual employee, their treating doctor and/or an independent doctor (if appropriate) regarding the employee's prognosis and likelihood of return to work. This level of due diligence will allow an employer to make informed decisions regarding matters such as an employees fitness for work, the basis of any return to the workplace and whether any reasonable adjustments could be made to accommodate such a return.

McGarva v Enghouse Australia Pty Ltd [2014] FCCA