My colleague has been sick for a year. Is it fair to fire them?
I work in an organization where a key team member is on various sick leave for at least a year. They are unable to complete outstanding tasks and the impact on other staff performing their duties becomes increasingly stressful.
Could they be shifted to a different, possibly less financial role, or let go for medical reasons?
I think there are two main elements to this question. Legal side: What can be done according to the regulation? And the ethical and cultural aspect: what is the right thing to do and how relevant decisions may affect the wider organisation. Although these are different dimensions, they are not separate; they affect each other.
I spoke to workplace law expert Joellen Riley Munton and Professor Emerita from the University of Sydney about the legal aspect. He told me that having a chronic illness counts as a disability and that you cannot take adverse action against someone because of their disability, but an employer can fire someone who cannot meet the inherent requirements of the job.
More specifically, a person with a chronic illness is protected from dismissal if he does not take more than the allowed personal (sick) leave and performs his job during periods when he is able to work. However, this protection may not apply in the situation you describe.
To answer your question about whether your employer can fire this person, I will quote Professor Munton directly:
“The Fair Work Act protects people against temporary dismissal due to illness or injury for three months. Following three months of unpaid leave [once a person has exhausted their paid leave entitlements]”It is possible for an employer to ask an employee to return to work, usually with a medical certificate showing that they are fit to continue working.”
The chronically ill person did not want this to be the case and most likely cannot change it.
“If someone is unable to do this, the employer will give him notice to terminate his employment. However, the situation is different if the illness is caused or worsened by work.”
The legal side of this: it’s possible. Let’s move on to the ethical and cultural element.
What you have outlined will be extremely frustrating and possibly tiring for you and other colleagues who are asked to take on more work. But the chronically ill person did not want this to be the case and most likely cannot change it.
However, they may be going through one of the most difficult periods of their lives. Firing them may end a particular organizational problem, but it can also be devastating for the person with the disease.
It may also have other unintended consequences. If I worked in an organization where a colleague was let go in the middle of a health issue, I might start to wonder whether I would be safe if some bad luck happened to me.
Even if the decision immediately relieves tension and discontent in one area, it can still have a net negative impact on the morale of the larger team.
Of course, it’s impossible to say anything definitive without knowing every detail, but my general suggestion is this: While your employer may have done the right thing by not firing the sick employee, they didn’t do the right thing in terms of the people left to carry the can. It sounds like you’re in an unsustainable holding pattern.
Macquarie University Business Administration Professor and organizational psychologist Dr. I asked Denise Jepsen what your employer should do to break the impasse.
“Organizations now have greater visibility into their duty of care to manage psychosocial hazards in the workplace, including excessive workload, unreasonable time pressures and inadequate support that could lead to psychological or physical harm, which appear to be the main issues here,” he says.
“So it’s not about what’s going on for this other person — and let’s say they’re facing something terrible — but focusing on what support or conditions the reader needs to be able to do their job. This then becomes a real, valid issue that the HR team needs to pay attention to before it becomes a legal issue.”
In summary, I think what is happening here is probably not an individual deliberately creating problems. Instead, it is a system trying to cope with a difficult situation.
I think after a year the leaders in your organization should have already made changes to make sure this absence wasn’t a burden on your team. It appears that they either did not, or any attempted resolution failed to improve the situation.
In light of this, as Professor Jepsen says, you may need to raise this issue with decision-makers and make clear how seriously the extra work affects you and others.
“I hope that this reader can find a way to raise the issue in a constructive and compassionate way, gain greater clarity about their role in the workplace, and move forward despite the uncertainty.”
Send your questions to Occupational Therapy via email jonathan@theinkbureau.com.au
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Jonathan Rivett is a writer living in Melbourne. He’s been writing about workplace culture and careers for more than a decade.
