What are things to consider when deciding on medical incapacity?

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Accepted Answer

To end your employment relationship due to medical incapacity, your employer needs to reasonably believe you can’t keep doing your job, and that they can’t keep the job open for you. They should consider a number of things:
• The terms of the employment agreement and your entitlement to sick leave (paid and unpaid). You can’t be dismissed when you have accrued and are taking sick leave.
• How long you’ve been employed with the employer, and how long you would have been employed if not for the problem
• Reasonable alternatives to dismissal such as help with rehabilitation, part-time or light duties, or medical retirement
• The nature and extent of the problem, including how long you’ve already been away from work. (Case law has shown that 12 weeks has been considered long enough for dismissal.) Where your incapacity is caused by a health issue, they should request appropriate medical advice. You can refuse to give your employer access to your medical information unless required in your employment agreement (even then you can decline). If you’re not willing to do so, they can make a decision based on the information they have.
• The nature of the employment and how important your role is to the organisation, based on its size, the financial impacts of your absence, whether they’ve managed for a long time without you, or had to bring in someone else to do the job; and the chance of recovery and how soon you could come back to work (based on objective information such as a doctor's or specialist’s report)
• If they’re at fault for your problems in any way. For example, they may have failed to provide a safe workplace, causing you mental stress and you needing to take a long time off to recover.
If your employer decides it’s reasonable for the employment relationship to end, they should decide which of two possible processes to follow: medical retirement or dismissal due to medical incapacity.
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