Q: We have exhausted all avenues with helping our worker who has ongoing health issues (including sleep apnoea, gout and an unhealthy lifestyle). None of these issues are work-related, but the worker is taking more and more time off work and does not appear to be getting better.

I feel that it is only a matter of time before an incident occurs involving this person. What is fair dismissal when someone is unfit for work?

A: To lawfully terminate someone’s employment on medical grounds, that person must be unable to fulfil the ‘inherent requirements’ of their role, including after you have made ‘reasonable adjustments’ to accommodate the worker’s illness or injury. If the worker has an entitlement to personal leave, it is not enough that they are missing work due to health issues.

Your best course of action is to first require the worker to undergo a medical examination to determine whether they can fulfil the inherent requirements of their role. Once you have a report from the medical practitioner as to the worker’s capabilities, you will be in a better position to make a decision regarding their ongoing employment.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Discrimination for current advice.