Practicability key when managing ill and injured workers
30 September 2010 8:20am
Managing workers on extended sick leave, or with long-term injuries, requires carefully balancing business needs against employees' rights, says employment lawyer Luke Connolly.
Employers can, understandably, become frustrated when they have a role vacant due to an employee's illness and uncertainty surrounding when they will be fit for work, he says.
But under the Fair Work Act, "You cannot terminate an employee for reasons of being ill within three months of their illness. Anything beyond that and you could then consider assessing their employment and whether they're going to be fit to perform their duties".
In instances of extended sick leave, Connolly says, "you need to have a look at the employee's job description and what they were contractually engaged to perform at the commencement of their employment, against their illness and against any medical assessment or reports from their doctor".
Employers are entitled to access this information, he says, because they have a right to know whether an employee is able to perform the "inherent requirements" of their job. But he encourages employers to get their own assessment of the employee and to "assess and scrutinise the treating doctor's report" when determining whether the worker's employment can continue.
They should also consider whether the employee might be able to perform other duties in the workplace, says Connolly, a partner at Mills Oakley.
Under the Fair Work Act, employers are obliged to treat employees fairly and go to reasonable lengths to maintain the employment relationship.
Aside from specific obligations which may apply under workers compensation legislation, if the employer fails to consider alternative duties, or modified duties for an injured or ill employee, it might face a discrimination complaint or even an unfair dismissal complaint for not doing everything reasonable to avoid having to dismiss the worker, he says.
Employers should also document their approach to these matters. Documentation of efforts to look for alternatives to termination of employment can be highly valuable in defending a case of discrimination or unfair dismissal.
If no accommodations can be made, an employer should also consider whether the employee can use their annual leave to cover their absence, or take leave without pay.
Again, there is no obligation on employers to make such an offer, Connolly says. "It all comes down to reasonableness. If there was ever a claim, the employer would want to show it gave the employee every opportunity to get themselves right and get themselves back to their position."
Everything an employer considers in its quest to be "reasonable" needs to be balanced against its rights to run a business and ensure its positions are filled, he adds.
When return-to-work efforts fail
Although requirements under workers' compensation legislation differ from state to state, the process for avoiding an unfair dismissal claim - once the relevant injury management and return-to-work obligations have ended - is generally the same, Connolly says.
The process, which should be carefully documented, includes:
Communication - employees should be informed that after a lengthy but unsuccessful process and efforts to manage them back to work, their continued employment will be reviewed;
Consultation - the employee should be given the opportunity to present any further medical material for the employer to consider at this time;
Further evidence - if the employee presents further reports the employer should obtain its own assessment of the worker's abilities. A key question to ask medical assessors is: "In what timeframe is the employee going to be able to perform the inherent requirements of the position?"
Analysis of available work - based on the independent medical reports, the employer should consider whether it can offer or continue to offer alternative or modified duties; and
An informed decision - only once the above steps have been taken (and always on the basis of the medical evidence), and after consultation with the long-term injured employee, should an employer move to terminate their employment.
Connolly says it's common for employers never to hear from their long-term injured employees (after workers' compensation obligations have ended). Getting back in touch often "jolts these employees into action, or allows employers to move them off the books".
Act immediately on fraud
Employers should not hesitate to act when an employee is known to be fraudulently taking sick leave or forging medical certificates, Connolly says.
"Something as sinister as forging a document really goes to the core of the employment relationship with respect to trust and would be deemed serious misconduct at common law."
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