Up-to-date medical information about functional capacity, likely duration and prospects of returning to the role.
MEDICAL INCAPACITY
Being unwell does not let an employer skip a proper capacity assessment.
Long-term or uncertain absence can become an employment issue, but medical incapacity is different from misconduct. The employer should assess capacity using current information and a fair process.
UNDERSTAND THE PROBLEM
Medical incapacity is about future work capacity, not punishment for being unwell.
An employer is not required to keep a role open indefinitely, but a medical-incapacity decision should be based on reliable and current information about the employee's capacity, prognosis, the needs of the role and reasonable alternatives.
These cases are usually built over time. The employer should engage with the employee, obtain appropriate medical information, consider rehabilitation or modified duties where relevant, and warn the employee if continued incapacity may place employment at risk before making a final decision.
WHAT MATTERS
Factors that commonly matter
The employee's length of service, the employer's operational needs and how long the position can reasonably remain open.
Reasonable alternatives such as phased return, modified duties, reduced hours or other available work.
Any ACC rehabilitation obligations and whether the employer has contributed to the health problem or failed to provide a safe workplace.
THREE QUESTIONS FIRST
Get these straight before the argument gets bigger.
What does the current medical information actually say?
What prognosis or return-to-work information has been sought?
What alternatives or accommodations were considered?
WHAT TO DO NOW
If your job is at risk because of health
Clarify the process
Ask whether the employer is gathering information, consulting about options or proposing termination.
Focus medical evidence on work
Where appropriate, seek information about capacity, restrictions, prognosis and possible return-to-work arrangements rather than diagnosis alone.
Put forward alternatives
Identify realistic modified duties, hours, timing or rehabilitation steps that may keep employment viable.
Correct assumptions
If the employer misunderstands your prognosis or the job's actual demands, address that before the decision is made.
WARNING SIGNS
Things worth looking at closely.
- The employer treats absence as blameworthy conduct
- A decision is made using stale medical information
- No genuine attempt is made to clarify prognosis
- Alternative duties or a staged return are ignored where relevant
- The process is rushed because a replacement has already been arranged
COMMON MISTAKES
Ways employees accidentally make the problem harder.
DON'T
Treating the process as disciplinary and responding defensively to legitimate questions about future capacity.
DON'T
Providing vague medical certificates that say only 'unfit for work' when more functional information is reasonably required.
DON'T
Assuming ACC status means dismissal can never be considered.
DON'T
Allowing the employer to make a final decision using stale medical information without challenging it.
POSSIBLE OUTCOMES
What a useful result can look like.
More time or better medical information before a decision
Return-to-work arrangements
A negotiated exit
An unjustified dismissal claim if incapacity termination is not justified
FAQ
Medical incapacity
Can an employer dismiss for medical incapacity?
Potentially, but the decision should be based on adequate information and a fair assessment of the circumstances.
Do I have to provide medical information?
The extent and form of information required depends on the circumstances and the agreement. Privacy and consent issues can also matter.
Is medical incapacity serious misconduct?
No. Incapacity and misconduct are different concepts and should not be conflated.
Can alternatives to dismissal matter?
Yes. Depending on the role and circumstances, modified duties, leave or a staged return may be relevant considerations.
FROM PROBLEM TO OUTCOME
Most disputes move through the same basic sequence.
- 1Preserve
Documents, dates, evidence and the deadline.
- 2Raise
Put the actual grievance or response clearly.
- 3Resolve
Negotiate or mediate where a sensible resolution is available.
- 4Escalate
Use the ERA or Court where the dispute cannot be resolved.
MEDICAL INCAPACITY
Want us to look at the actual facts?
Employee-side employment advocacy. No Win No Fee for suitable matters.