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The challenges of managing and dismissing a long-term absent employee

Author: Robert Lamb
3 min read
06 July 2022

Key Takeaways

  • After three months of unpaid leave, employees may no longer be covered by unfair dismissal provisions relating to illness or injury under the Fair Work Act.
  • An absentee employee can still challenge their dismissal if it is harsh, unjust or unreasonable, is an unlawful termination, or falls under anti-discrimination law.
  • Clear, deliberate communication with a worker on extended leave is extremely important to avoid potentially damaging and expensive claims.

After three months of unpaid absence, it can be appealing for employers to dismiss an employee who is unavailable due to ill health or injury. But before replacing a missing employee, it’s important to seek both medical and legal advice.

When managing an employee on extended sick or personal leave, three months is an important milestone. If an employee has used up their sick leave and has been away for more than three consecutive months, or more than three months across the past 12 months, then they may no longer be protected from the unfair dismissal provisions for illness or injury under the Fair Work Act. This is the point that organisations can choose to cut ties with an employee who cannot fulfill their role.

However, employers must be aware that if they chose to dismiss a worker after a three-month absence, the employee can still challenge them with the following claims:

  • an unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable
  • a general protections claim, if the reason for the dismissal is another protected reason
  • an unlawful termination claim on other grounds
  • a claim under a state or federal anti-discrimination law

This is why employers who are considering terminating a worker’s employment on the basis they have been on unpaid sick leave for more than three months, should seek medical and legal advice before taking any action.

Throughout this process it is vital that employers clearly communicate with their worker. Below are some useful tips for managing an ill or injured employee.



Plan meetings with the employee in advance

Fail to consider any relevant policies, procedures or industrial instruments

Prepare a script for each meeting with the employee, setting out key aspects of discussion

Go through the process alone – instead seek expert medical or legal advice as required

Provide the employee with notice of the meeting and a broad outline of topics to be discussed

Obtain an independent medical assessment and/or report without the employee’s consent unless the employee is reasonably directed to attend the independent medical assessment

Provide the employee with the opportunity to respond course of action

Deny the employee paid leave when attending any employer directed medical examinations

Clearly communicate any changes to an employee’s duties and the period those changes to duties will apply

Fail to schedule a post medical assessment meeting with the employee

Keep detailed records of the meetings

Take irrelevant considerations into account when making decisions about the employee’s employment


Source: Hor, Jaydeep (2020) Labour and Employment Law Manual, page 150

Great care must be taken in these circumstances to protect your business from a damaging claim. Failure to obtain legal and medical advice before moving to dismiss an ill or injured worker may result in an employer defending a very difficult and expensive Fair Work Commission, Court or Tribunal Claim.

If you would like further advice around managing an employee on extended sick or personal leave, or any other employment matter, contact me at or call 07 3220 1144.

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The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.

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