4. Mr. B has been diagnosed with a respiratory illness and he needs to see a doctor regularly. His boss has since commented on his sick leave record, and the inconvenience caused to other colleagues during his absence. Just a month ago, he was hospitalized for one week due to his worsening health. When he returned to work, he was dismissed on the basis that he had taken too much sick leave. Is it unlawful for his employer to dismiss him because he suffers from a chronic illness and therefore requires regular medical treatment?
When a serious illness prevents an employee from performing the inherent requirements of the job, the DDO permits the employer to terminate him. However, the law also requires the employer to consider providing reasonable accommodation (e.g. allowing time-off for medical treatment in the subject case) to the employee with the disability, so as to enable that employee to perform the inherent requirements of the job.
If Mr. B's employer dismissed him without first making, or trying to make that accommodation, his employer might be in breach of the DDO. However, if his employer can prove he has experienced unjustifiable hardship in providing such accommodation (e.g. it seriously hinders Mr. B's job duties or the company does not have adequate financial/human resources to make or continue the relevant arrangements), his employer could claim exemption under the DDO and in that case the dismissal would not be unlawful.
Employers should also note the provisions in the Employment Ordinance with regard to granting sick leave. For details, please go to the relevant section of the Employment Disputes topic.
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