If an employee injures themselves on their own time (knee injury) and then as a result is unable to fulfill their duties at work as a result – what are our legal rights? Can we terminate him on the basis that he is unable to perform his duties and if so, what process would we follow? I am guessing it would be slightly different then the ‘opportunity to improve’ type scenario with letters of warning.

You must be extremely careful when terminating an employee who is sick or injured. However, if they are unable to perform the inherent requirements of the role, you may have grounds for termination.

To determine the inherent requirements of a role, consider:

• The terms of any employment contract;
• The job description;
• The actual physical and mental tasks performed; and
• The nature of your business.

Even if the employee cannot meet the inherent requirements, where possible and reasonably practicable you must make an effort to accommodate the employee by temporarily altering their role or implementing changes to help the employee during their time of illness/injury.

Therefore, dismissal on the grounds of incapacity is permitted if the incapacity prevents the employee from meeting the inherent requirements of the role and nothing you can reasonably do will enable the employee to meet those requirements. If this is the case, you must consult with the employee and give them every opportunity to provide relevant information about their capacity, and you must satisfy yourselves that you have enough evidence to prove that the dismissal is not unduly harsh when considering the employee’s length of service, employment history and the impact of the dismissal on him/her compared with the impact on your business.

Despite the above, the FW Act allows a dismissal of an employee if they are absent from work for 3 consecutive months, or 3 months in a 12 month period. However, during this period there should be reasonable consultation with the employee regarding their injury and position, including notifying them of the possibility of dismissal based on their absence for the required period.