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Published: 11 December 2013
Author: Penny Savidis

It's illegal to sack someone on temporary leave

It's the phone call that an injured worker dreads and it goes something like this.

"We've been hoping you would recover enough from your injury to go back to your old job, but look, you've been away on extended leave without pay for nearly two months now."

"You've done your sick leave and you've no more annual leave."

"We can't keep carrying you, you'd understand that? We can't keep your job open forever, I'm sorry but we're going to have to let you go."

Too often, injured workers are coerced into accepting this situation as reasonable or are led to believe that their employer is within their rights to replace them.

But it's not on.

Under our industrial relations system, it's not acceptable to treat employees as faulty parts that can be replaced when they are damaged. Under the Fair Work Act, if you are temporarily absent from work in order to give yourself time during which to recover from an injury or illness, your boss usually has no right to dismiss you. An employee who is dismissed in this situation can lodge a general protections claim.

The Fair Work regulations define a temporary absence or injury. Provided the employee notifies their boss of the injury or illness correctly, it is unlawful to terminate a worker who is injured or ill and on extended leave without pay for a period of three months or less (or less than a total of three months of unpaid leave over a 12 month period if there has been one or more illness or injury requiring a number of periods of time off work). If an employee is on workers' compensation leave, the time spent on that leave also does not count towards the period of absence.

Even at the end of a period of temporary absence for illness or injury, if workers are unable to do the job they were doing before their illness or injury, their employer has to exhaust a number of alternatives before they may lawfully dismiss them on the basis that they cannot perform what are called "the inherent requirements" of their particular position.

Anti-discrimination law states that an employer must take reasonable steps to help the injured, ill or recovering worker back into employment. One option would be to make "reasonable adjustments" in order to help the worker continue in their job. What is "reasonable" depends on a number of factors including the nature of the disability, the employer's financial circumstances and workforce size, and the affordability of the alterations. Under the Federal Disability Discrimination Act, an employer must make reasonable adjustments to accommodate a worker with a disability unless it would cause the employer "unjustifiable hardship."

An unfair dismissal, a general protections claim or a discrimination claim can be launched against any boss who acts rashly to terminate an injured worker who is on some form of extended leave because of injury or illness.

A boss may not be obliged to hold your job open forever, but three months is not a long time to give someone in order to aid recovery. What's more, it's what the law says too.

And that's what you should tell your boss.

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