Medical incapacity is different from misconduct
Being unwell or injured is not disciplinary wrongdoing. The process should be directed at capability, prognosis and reasonable alternatives rather than blame.
SICK LEAVE & ACC
Being off work does not put your employment into a legal vacuum.
An employer can eventually consider dismissal where illness or injury means an employee cannot perform the job for a reasonable period. But medical incapacity is not a shortcut. The employer should investigate actual work capability, use current medical information, consider the likely duration of incapacity and examine reasonable alternatives before deciding employment cannot continue.
START WITH THE REAL ISSUE
What this situation actually means.
Medical incapacity cases are fact-specific. Relevant factors include the nature of the role, length of service, how long the employee has already been absent, what the medical evidence says about prognosis, how long the employer can reasonably keep the job open, and whether temporary or permanent adjustments could allow a return to work.
Current medical information matters. An employer should not ordinarily base dismissal on guesswork or stale certificates if more useful information can reasonably be obtained. The employee should know what information is being relied on and have a meaningful opportunity to respond before the final decision.
ACC can add another layer. Where vocational rehabilitation obligations apply, the employer may need to take practicable steps to support the rehabilitation goals. Even outside that specific duty, the employer should consider alternatives such as adjusted duties, reduced hours or light work where reasonable.
WHAT MATTERS
Four things to check before deciding what the case is worth.
The employer needs a realistic medical picture
Up-to-date information about capacity, restrictions, prognosis and likely return-to-work timing can be central to a defensible decision.
Alternatives matter
Temporary adjustments, reduced hours, light work, leave arrangements or redeployment may need genuine consideration depending on the case.
ACC obligations may be relevant
Where ACC is involved, rehabilitation steps and communication with ACC can be important evidence of whether the employer acted reasonably.
WHAT TO DO NOW
Keep the next steps practical.
Collect the medical record used for work
Keep certificates, specialist letters, return-to-work plans, ACC correspondence and any consent you gave for medical information.
Identify the actual job requirements
Keep your job description and note which duties you can and cannot currently perform, including possible adjustments.
Answer incapacity proposals carefully
Correct factual errors, supply relevant prognosis information and identify realistic alternatives rather than simply saying you want to keep the job.
Keep ACC rehabilitation material
Preserve vocational rehabilitation plans, employer communications and any proposed graduated return to work.
RED FLAGS
Facts that deserve a closer look.
- CHECK
The employer treats a short absence as permanent incapacity
- CHECK
No current medical evidence is obtained before dismissal
- CHECK
The employer refuses to consider a graduated return or other realistic alternative
- CHECK
A disciplinary allegation is mixed into the incapacity process without clarity
- CHECK
ACC rehabilitation information is ignored
FAQ
Questions people ask in this situation.
Can I be fired while I am on sick leave?
Potentially, but being on leave does not remove the employer's dismissal obligations. The lawful basis and process still matter.
Can my employer dismiss me while I am on ACC?
Potentially, especially in a long-term incapacity situation, but ACC rehabilitation obligations and the employee's actual work capacity must be handled carefully.
How long must an employer hold my job open?
There is no single fixed period that applies to every medical-incapacity case. Reasonableness depends on factors such as prognosis, role requirements, service, absence, workplace impact and available alternatives.
Do I have to give my employer all my medical records?
Not automatically. The employer may reasonably need medical information relevant to work capacity and prognosis, but the scope and method of obtaining it should be proportionate to the employment issue.
SICK LEAVE & ACC
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