The employer advised him that his position could not be kept open indefinitely. The seven weeks eventually turned into 17 weeks before the employer decided they had to dismiss him. He was dismissed on the basis that his employment contract had been frustrated (in short he couldn’t work and so there was no longer any employment relationship).
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It was held that even though the employer had not been generous in the time allowed for recovery it was not unfair to dismiss him.
When deciding whether to dismiss an employee in this situation the interests of both parties must be balanced. After a fair investigation, an employer may justifiably dismiss an employee who is not fit and able to perform the work required and is not in a position to do so within a reasonable period of time (considering all the circumstances).
A 2008 case where the dismissal was unjustified involved a Mr Jope where prior to dismissal there was no investigation into J’s well being, no inquiry into how long he would be away from work or any indication to him that the employer was “at the end of his tether”. The employer also failed to request any further particulars about the medical prognosis.
Employers must be able to justify their decision to dismiss in terms of the specific obligations under section 103A of the Employment Relations Act, which talks about the actions being those that would be taken by a fair and reasonable employer in all of the circumstances.
If the decision to dismiss is what a reasonable employer would do, is based upon facts properly obtained, and the employee is aware of the employer’s inquiry and decision making then the dismissal for medical incapacity is likely to be upheld.
