My colleague has been sick for a year. Is it fair to fire them?

I work in an organisation where an important team member has been on various sick leave – on and off – for at least a year. They are unable to complete outstanding tasks, and the impact on other staff covering their duties is becoming increasingly stressful.

Can they be moved to a different, possibly less financial, role or let go for medical reasons?

I think there are two main elements to this question. The legal side: what can be done according to regulation. And the ethical and cultural side: what’s the right thing to do and how might respective decisions affect the broader organisation. While these are different dimensions, they’re not separate – they affect one another.

I spoke with Joellen Riley Munton, an expert in workplace law, and Professor Emerita at the University of Sydney, about the legal aspect. She told me that although having a chronic illness would count as having a disability, and you can’t take adverse action against someone because of their disability, an employer can dismiss someone if they can’t meet the inherent requirements of the job.

More specifically, if a person with a chronic illness is not taking more than their permitted personal (sick) leave and if they’re doing the job during periods when they’re able to work, then they’re protected from dismissal. But this protection may not apply in the situation you’ve described.

To answer your question about whether your employer can sack this person, I’ll quote Professor Munton directly:

“The Fair Work Act protects people from dismissal for temporary absence for illness or injury for three months. After three months of unpaid leave [once a person has exhausted their paid leave entitlements], it is open for an employer to ask the employee to return to work, usually with a medical certificate showing fitness to resume work,” she says.

The person with the chronic illness didn’t mean for this to be the case and very likely can’t change it.

“If someone can’t do that, the employer will give them notice to terminate employment. It is all different, though, if the illness is caused or exacerbated by work.”

That’s the legal side: it’s possible. Let’s move on to the ethical and cultural element.

What you’ve outlined would be hugely frustrating, and probably exhausting, for you and other colleagues who are being asked to take on more work. But the person with the chronic illness didn’t mean for this to be the case and very likely can’t change it.

They may, however, be going through one of the most difficult periods in their life. Sacking them could bring a specific organisational problem to a close, but it could also be devastating for the person with the illness.

It might also have additional, unintended consequences. If I worked for an organisation where a colleague was cut loose in the midst of a health problem, I might start to wonder if I’d be safe if bad luck befell me.

Even if the decision immediately relieves tension and discontentment in one area, it might still have a net negative effect on morale among the larger team.

Of course, it’s impossible to say for sure without knowing every single detail, but my general proposition would be that although your employer has done the right thing by the unwell employee in not firing them, they have not done the right thing by the people left to carry the can. It sounds like you’re in an unsustainable holding pattern.

I asked Dr Denise Jepsen, Professor in the Macquarie University Department of Management, and an organisational psychologist, about what your employer should be doing to break the stalemate.

“Organisations now have an increased visibility of their duty of care to manage psychosocial hazards in the workplace, including excessive workloads, unreasonable time pressures and insufficient support that can cause psychological or physical harm, which appear to be the main issues here,” she says.

“So the issue is not so much about what is going on for this other person – and let’s assume they are dealing with something awful – but to focus on what support or conditions the reader themselves needs to be able to do their job. That then becomes a real and valid issue that the HR team should pay attention to before it becomes a legal issue.”

In summary, what, I think, is probably happening here is not an individual deliberately causing a problem. Instead, it’s a system struggling to cope with a difficult situation.

I think, after a year, leaders at your organisation should already have made changes to make sure this continued absence is not putting a burden on your team. It seems as if they haven’t – or that any attempted remedies have failed to improve the situation.

In light of this, as Professor Jepsen says, you may need to discuss it with decision-makers, making it clear how seriously the extra work is affecting you and others.

“I’d be hopeful that this reader can find a way to raise the issue constructively and compassionately, get some increased clarity on their role at work and be able to move forward, even despite uncertainty.”

Send your questions through to Work Therapy by emailing jonathan@theinkbureau.com.au

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