Managing an employee who has been injured, whether at work or outside of the workplace, can present a number of challenges for employers. Long-term injured workers have a range of protections under the Fair Work Act, anti-discrimination legislation and workers’ compensation legislation and in such circumstances, employers have an obligation to:
- Provide appropriate support and assistance to an employee who suffers a non-work related injury/illness or medical condition.
- Support the injured employee with returning safely to work as soon as possible.
- Ensure that the employee is not treated unfavourably because of their injury or illness.
- Keep the injured or ill employee’s position open and not terminate the employee during a period of temporary absence.
Where an employee’s period of absence due to personal leave has exceeded three months, and where it is determined that the employee is unable to perform the inherent requirements of their role, an employer would not be expected to keep a position open indefinitely or make adjustments that would cause unjustifiable hardship. This was supported in a recent case heard by the Fair Work Commission in which it was determined that the employer’s obligations in such circumstances does have some limitations.
In this case, the employer had provided an injured employee (who had been employed as a bus driver) with support for over a year and a half after they had developed a spinal injury and became prone to panic attacks while undertaking their employment. The support provided by the employer included accommodating various modifications to his duties in accordance with the employee’s medical restrictions. This included reducing the amount of time that the employee was required to drive a bus.
After a period of more than 18 months, the employee’s condition had failed to improve and as a result, the decision was made by the employer to terminate the employee’s ongoing employment on the basis that they could no longer perform the inherent requirements of their role. The injured employee subsequently pursued an unfair dismissal claim in which it was alleged that:
- They felt that they had not been supported by the employer,
- They felt that had not been given a chance to rehabilitate, and
- They were at a financial disadvantage due to how their workers compensation claim had been managed.
While the Commission had acknowledged that the claims process had been stressful for the employee, it did not mean that their dismissal had been harsh, unjust or unreasonable. In making its decision, the Fair Work Commission determined that the employer had taken substantial and comprehensive steps to support the employee to recover and to remain at work. Given this, it was held that the employer was not obliged to continue to hold the employee’s position open for an indefinite period after it had been made apparent that that their rehabilitation had been unsuccessful.
It is important to note that while this case does support that an employer will not be expected to keep an injured employee’s position open indefinitely, any decision made by an employer to terminate an injured or ill employee following a period of temporary absence must be based on current medical evidence which supports that the employee does not have the capacity to perform the inherent requirements of their role both now and in the foreseeable future.
Should you be in a position where you are considering terminating an injured or ill employee, we recommend that you contact a member of our HR Advice Online team to discuss the required process and considerations so as to make an informed decision and ensure that you are minimizing any potential risks.
Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.