In last week’s client alert we discussed the significant issue for employers of dealing with a long-term ill or injured employee. As was noted in the article, most employers in our experience generally want to do the right thing when it comes to dealing with employees who are ill or injured and are unable to return to full time pre-injury employment. This however needs to be balanced against the interests of the business, and in some cases it is simply impractical for the employment to continue. In those circumstances, it is however not simply a matter of dismissing the employee on the basis of the injury or illness for which they have been absent from the workplace.
In order to mitigate the risks in this area for employers, and ensure that any termination process is fair and equitable, it is recommended that employers follow a checklist of steps to manage an injured or ill employee.
Below we set out a number of recommended steps an employer ought to take when considering the termination of an ill or injured employee:
Preliminary Considerations
- Seek the express consent of the employee to obtain full medical reports from treating health practitioners;
- Obtain all medical reports available from the employer’s insurer if the employee has been in receipt of benefits pursuant to a workers’ compensation claim;
- Where appropriate and reasonable, direct the employee to attend an independent medical examination; and
- Fully consider medical reports obtained and whether any further information is required.
If Employee is Considered Fit for Employment
- Discuss with the employee that the business is of the view they are fit for employment;
- Direct the employee in writing to return to work;
- If the employee refuses to return to work, counsel the employee and provide a written warning that failure to return to work may be considered abandonment which may lead to termination of employment;
- Consider termination of the employee’s employment;
- If a workers’ compensation claim has been made, the employer is required to inform the insurer of its actions at each step of the process.
Additional Steps to Undertake for a Returning Employee
- Conduct a risk and hazard assessment of the workplace;
- Consider whether there is a risk to the employee’s health and safety in performing work;
- Determine appropriate modified duties for the employee where necessary;
- Does the injury or modified duties pose a risk to other employees’ health and safety; and
- Can the risk be minimised or eliminated without excluding the injured employee from the working environment.
If Employee is Considered Unfit for Employment
- If the injury is work related, has 6 months passed (other States and Territories may have different applicable periods) from the time the employee became unfit for employment. If 6 months has not elapsed, it is unlawful to proceed with the termination;
- Has the employee’s position been analysed to determine the specific inherent requirements of the role and whether the employee can meet such duties;
- Can the business make reasonable adjustments to accommodate the employee without imposing unjustifiable hardship on itself, to ensure the employee can continue to perform their role;
- Consider whether the employee is likely to recover from the injury within a further 3 to 6 months, if it is likely the employee will recover within the period termination would involve a significant risk;
- Seek further medical advice as appropriate regarding the employee’s recovery and future health requirements;
- Discuss with the employee the views of the business if it appears unlikely the employee will recover in 3 to 6 months and be able to fulfill the inherent requirements of the job.
Is Termination the Best Option
- Discuss termination of employment with the employee and give them an opportunity to respond;
- Genuinely consider any response from the employee and any alternative positions to which the employee could be redeployed;
- If appropriate, discuss redeployment options with the employee;
- Consider providing the employee with a period of notice in excess of the minimum notice requirements (or pay in lieu) and other non-monetary benefits (such as outplacement assistance) in return for a Deed of Release;
- Ensure the employee termination benefits and properly calculated and paid; and
- If a workers’ compensation claim has been made, the employer is required to inform the insurer of its actions at each step of the process.
The above checklist is by no means exhaustive, and other practical steps may be required when managing an ill or injured employee. What we do not recommend is that an employer make decisions about the fitness or capacity of an employee without seeking full disclosure of medical reports and professional advice. Notably, where an employee is unlawfully terminated, both the unfair dismissal regime and the workers’ compensation scheme provides a mechanism for the Court to reinstate the employee. In the case of the workers’ compensation jurisdiction, the injured employee has the right to apply for reinstatement to employment at any time within 2 years of the termination date.
It is highly recommended that employers seek advice on the most appropriate and equitable way to manage an ill or injured worker before commencing any kind of process to review the employee’s suitability for the job. Sensitive terminations, such as those involving an injured or ill employee are never easy or straightforward. We regularly advise employers on dealing with long-term absent workers and can provide strategies to ensure that any termination of employment based on medical grounds is carried out with the least amount of risk to the employer.
If you wish to discuss any aspect of this article or require specialist advice or assistance in relation to an employment law issue, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.