Employers are often faced with the difficult situation of having to manage an employee on long term sickness absence.   While case law makes it clear that employers are not expected to keep the position of an employee who is absent on long term sick leave open indefinitely, employers must ensure that any dismissal of an employee is substantively justified and procedurally fair.

In Lal v The Warehouse Limited [2017] NZEmpC 66 (Lal-v-The-Warehouse.pdf) the Employment Court was asked to decide whether the dismissal of an employee absent on long term sick leave on medical grounds amounted to an unjustified dismissal.  In this case, the employee did not do herself any favours:    the Employment Court found that she did not actively engage with The Warehouse in the process;  and failed to respond to correspondence.  In finding that the dismissal was both procedurally fair and substantively justified, the Employment Court also summarised the legal framework for dismissing an employee for long term absence:

a)  The employee must be given a reasonable opportunity to recover. What amounts to a ‘reasonable opportunity’ will depend on the particular circumstances. The following factors will be relevant:

  • relevant terms in the employment agreement and any applicable policies;
  • the position held by the employee;
  • the length of their employment with the employer;

b)  The employer must engage with the employee and carry out a ‘fair and reasonable inquiry’ into the employee’s prognosis for a return to work.  Such an inquiry will involve:

  • asking for relevant medication information and consideration of that information;
  • explaining to the employee the reasons for the inquiry and the possible outcome of the process;
  • allowing the employee an opportunity to comment on any findings and provide input into the inquiry.;

c)  Where the employee has a reduced ability to undertake certain duties, the employee will be expected to engage with the employer’s attempts to facilitate a return to work.

Disclaimer: The above information is for information purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on the information given.