Your employer cannot fire you just because you have been diagnosed with a serious illness/injury.
If the illness or injury has not impacted your ability to perform your job, then there should be no change in your employment.
But if the illness/injury has caused you to be:
absent from work for a long period of time
persistently absent for short periods at a time, or
declared medically unfit to work,
then it may be fair for your employer to dismiss you, but only after the proper process has been followed.
And if your employer fails to follow the proper process, the dismissal may be unfair.
These are the 5 steps your employer must take before dismissing you if you are sick/injured:
1. Communication.
Your employer should find out from you the exact nature and extent of your illness- how serious is the illness? How long will you take to recover? Are you able to do your usual job? Would you be able to do light duties? If you are absent, how long is it expected that you will be absent? etc. You should provide your employer with any medical documentation you have. The company could also consult with their own medical doctors, or your doctor (if you give consent) to get an official medical opinion on when/if you may be able to return to work and if you will be able to perform your duties.
2. Alternative employment.
Your employer should consider whether there are any jobs in the company that are more accommodating to your health situation (Eg, a role with lighter duties, or a virtual position). The company is not required to create a new job, but if one exists, it may be fair to transfer you into the new role.
3. Reasonable Waiting Time.
Your employer must give you a reasonable time to recover and return to your job, before dismissing you. They have a duty to hold your job open for as long as they reasonably can.
What is a ‘reasonable time’ will be different in every case, and it is based on: the size and nature of the business, how important your role is to the company’s operations, how much your absence is impacting the business, whether your salary is still being paid in your absence, whether the business has to hire a replacement, how long you have been absent, how long you are expected to be absent, how likely it is that you will recover, how long you have worked in the company, how long it was expected that you would continue to work with the company, what is the nature and effect of the illness, how urgent the need is to fill your job, etc.
4. Estimated Date of Return / Warning
If you have been absent for a long time and your employer is nearing the time when they can no longer reasonably hold the job open for you, they must notify you that if you don’t return by a certain date or provide information (by that date) of when you expect to return, then the company will have to terminate your contract.
If you’ve been persistently absent for short periods, then your employer must give you multiple warnings about the need to improve your attendance, and if that does not work, he must give you a final warning that dismissal is being considered unless you improve your attendance and show (by a certain date) that you are fit report to work on a consistent basis.
5. Final Communication
If the deadline for you to return/provide information about your return passes and you have not returned or provided the information (or in the case of persistent absence, if you have not proved that you are fit to work on a consistent basis), and your employer can no longer reasonably hold the job for you (and there is no alternative role that can be given to you), then your employer has to communicate with you, giving you a final opportunity to be heard in respect of your injury, likelihood of recovery and the fact that he can no longer reasonably wait, and then it may be fair for him to terminate your contract.
These steps should only be implemented if your illness/injury is causing absences or affecting your performance. If the illness/injury has not affected your work, there is no reason for your employer to consider dismissing you or changing your role.
If you were diagnosed with an illness/injury and your employer dismissed you without following the proper process, your dismissal may be unfair and you may be entitled to compensation or even to get your job back.
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