Dismissal after long sick leave

Article contributed by
special arrangement with the
Equal Opportunities Commission.

Candy was a supervisor of a merchandising company. She was responsible for shipping orders and had worked in the company since 1993.

Candy took three months' sick leave from March to May 1997 as she had to undergo a treatment programme. When she returned to work in June, she was dismissed by the company.

Frustrated and hurt by this treatment, Candy filed a complaint with the Equal Opportunities Commission (EOC) against the president of the company and the company itself for disability discrimination.

When the EOC contacted the two respondents, they said that Candy was dismissed on the grounds of poor performance. They said that, because of shortcomings in her writing ability and management skills, she could not cope with the job requirements and this had been reflected in her performance appraisal reports for the past three years.

However, the EOC investigation found that Candy's overall performance was rated as satisfactory in her appraisals.

Under the Disability Discrimination Ordinance (DDO), it is unlawful to discriminate against an employee on the grounds of disability by dismissing the employee or subjecting him or her to any other detriment.

An employer should not treat employees with disabilities less favorably then those without disabilities.

Therefore, the respondents were willing to attend a meeting for conciliation. During the meeting, the two parties reached a settlement which stated that the company, that is the second respondent, would pay Candy a sum of money of about three months' wages.

Candy agreed to treat this as a full settlement of the matter and then requested that the complaint against the first respondent, the company president, be discontinued.

Good management practice:
Discrimination on the grounds of disability is unlawful

People are entitled to equal consideration for jobs regardless of whether they have a disability. The Disability Discrimination Ordinance (DDO) provides that discrimination on the grounds of disability is unlawful. Under the DDO, employers are not allowed to discriminate against people with disabilities, in respect of a particular job, except in the following circumstances:

(a) where absence of a disability is a genuine occupational qualification (GOQ) of the job;

(b) where the person with the disability would be unable to carry out the inherent requirements of the job.

Q & A about the Employment Ordinance
Q1 My job involves experimenting with chemicals. During the 10-year period in my present employment and as a result of my job, I have developed an allergy to these chemicals. My company now wants to fire me since I cannot fulfil my job duties but I believe they should have some obligations, as it is due to the nature of my job that I have become sick. If I am fired, I will not be able to continue in this field and I have no other qualifications. Please advise on my rights vis-a-vis the company.
A1 Whether a result of the nature of your job or not, your company should not dismiss you because of your allergy without trying to find a Reasonable Accommodation for you. You can no longer carry out the inherent requirements of your current position, which is to experiment with chemicals. Therefore your employer should try to provide you Reasonable Accommodation, such as reassigning you to a position that does not require contact with chemicals, unless such accommodation requires services or facilities that would impose an unjustifiable hardship on the employer. Reasonable Accommodation under the DDO is a means of overcoming unnecessary barriers that restrict employment opportunities for people with disabilities. Of course, the DDO only applies in the context of discrimination and does not relate to any other claims you may have against your company for any injury or illness received at or from your work under any other legislation.

Q2 I had two operations recently. With the first one I was away from my job for three months and with the second for about another three months. My company says that due to my long absences I am unable to carry out the inherent requirements of my job. Is there any time limit on how long one can reasonably stay away on sick leave without being qualified as unable to carry out the duties inherent in one's job?
A2 The DDO does not stipulate a time limit on how long one can reasonably be absent from work due to sickness. However, the employer should consider whether he/she could reasonably provide any special services or facilities to enable an employee with a disability to perform the inherent requirements of a job. These include allowing an employee to go on sick leave or no pay leave regularly to receive medical treatment. If the employer dismisses the employee without making such considerations, he/she might have breached the DDO.

Source : Equal Opportunities Commission

Taken from Career Times 28 June 2002

(Last review date: 23 August 2013)

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