A "how-not-to" guide to the redundancy process: OHS case studies

30 October 2008 11:18am

Making a sick or injured employee redundant is fraught with risk, and the process can evolve into a litigious disaster if the task is hastily or imprudently undertaken.

The absence of expert guidance coupled with a decision made in the heat of the moment could very well end in a protracted compensation claim or reinstatement squabble, inflicting incalculable damage on the company's repute and staff morale.

Dealing with a sick, injured or rehabilitating worker whose long-term dexterity and adaptability have been seemingly curtailed can be particularly tricky, and a failure to explore all available options can cost a business thousands of dollars in unnecessary legal expenses.

In this article, HR Daily outlines four recent cases in which employers failed to err on the side of caution.

Imprudent job allocation made termination unlawful

A NSW Industrial Relations Commissioner expressed bewilderment at an employer's failure to return a 63-year-old rehabilitating worker to his pre-injury position.

The truck driver injured his knee and was placed on restricted duties for a period of time before being deemed medically fit to return to normal work.

However, instead of being returned to a driving job, he was allocated a "heavy" labouring position in which he exacerbated his injuries. His employment was then terminated on the grounds that no suitable duties could be found.

In ruling the termination unlawful, Commissioner Elizabeth Bishop found that it was unreasonable and unrealistic to expect a worker of that age to make a ready transition to heavy work without difficulties ensuing.

"All the [worker's] problems seem to have arisen as a consequence of attempts to place [him] in alternate positions that were unsuitable," she said.

Commissioner Bishop found the employer's claim that the pre-injury position had been made redundant was completely unsubstantiated, and that the manager responsible for assigning the worker to a new role had failed to ascertain what the worker's pre-injury position actually was.

Part-time work was available

In a similar case to the one above, NSW IRC President Roger Boland found that a rehabilitating worker, who was made redundant on the grounds of a lack of suitable duties, could have been allocated part-time work.

President Boland heard evidence from the employer that a trainer-provider position that had been assigned to the worker on his return from injury was too seldom needed to be deemed a regular position.

However, in ordering the worker's reinstatement, President Boland found that the worker had been engaged in a variety of other roles since his return.

The employer, therefore, had failed to make a proper assessment of whether there was work available for the employee to perform within his medical restrictions before issuing the termination notice, President Boland found.

Missing compo certificate didn't amount to abandonment

In the Australian Industrial Relations Commission (AIRC), a full bench found that an employer had unlawfully sacked a worker for abandoning her employment after her sick leave and workers' compensation certificates expired.

The worker had allegedly failed to return to work or to contact her employer after the expiration of the certificates.

The bench, however, found that although a failure to report to work or contact the company could constitute abandonment of employment under the worker's employment contract, the employer was well aware that the employee had been absent on workers' compensation.

The worker was entitled to be absent upon the condition of an additional certificate being produced, the bench found.

Reason for termination inaccurate

In the AIRC, Commissioner Colin Thatcher found that a worker who was sacked over a "fraudulent claim for sick leave" had never claimed to be sick.

The worker, who was due to take voluntary redundancy within a matter of days, had his employment terminated for attending an induction day at his new job instead of undertaking a rostered shift.

The termination meant that he was no longer entitled to $23,000 in severance pay.

According to the employer, the worker was sacked on the basis of a previous agreement, made after unrelated disciplinary action, in which he was required to supply medical certificates for any future sick-leave absences.

However, Commissioner Thatcher found that the worker had made it explicitly clear that he was attending the induction, as opposed to taking sick leave, and that the employer had failed to inform him of a special category of leave that he could have applied for.

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