This information is designed to assist employers deal with all relevant considerations and to reduce the risk of claims for unfair dismissal, discrimination or breaches of general protections provisions of the Fair Work Act.
It is vital that an employer is able to produce evidence of reasonable attempts to accommodate an employee during their illness or injury if an employee subsequently takes action against the employer in relation to actual or perceived treatment at work, or a decision to terminate employment.
Unlike workers’ compensation claims for a work-related injury or illness, there is no requirement to provide alternative duties for a period of time in the case of a non-work related illness or injury. However, anti-discrimination legislation requires that an employer take steps to reasonably accommodate a person’s disability in certain circumstances.
In most cases, ill or injured employees will return to full duties without the need for significant intervention. In other cases, employees may require support and assistance to return to work through a gradual process.
In all cases of returning an ill or injured employee to the workplace, it is essential that the process is based on sound medical advice and a clear assessment of the workplace to ensure that the duties provided comply with any medical restrictions.
Reviewing the employee’s ongoing employment
There will be occasions when the circumstances of the workplace and/or the employee’s condition make it appropriate for the employer to review the employee’s ongoing employment, as the evidence suggests that it is unlikely that the employee will return to their pre-injury/illness role. During any such review, it is important that the employer bear the following in mind:
- It is a breach of the general protections provisions under the Fair Work Act to dismiss an employee because of a disability or because of a temporary absence due to illness or injury;
- Under disability discrimination legislation, an employer must make reasonable adjustments to accommodate a worker’s disability, unless to do so would constitute an unjustifiable hardship for the employer. This may require, for example, the modification of pre-injury duties, retraining, supply of specialised equipment, alterations to premises or changes in working hours; and
- Employers can be found to have unfairly dismissed an employee if they have not followed a fair process in reaching a decision to terminate an employee’s employment. It is also critical that the employer has a valid reason for the decision, such as an ongoing inability to carry out the requirements of the pre-injury position, based on medical evidence obtained specifically for this reason.
The process involved in reviewing an employee’s ongoing employment and its possible progress towards termination of employment is as follows.
Step 1 – Investigating the employee’s future capacity
It is important to inform the employee that their employment is under review. This step is designed to establish that the employer has properly investigated the long-term nature of the incapacity, properly determined whether the employee is, or will be, able to continue working in the organisation and that the employer has based that decision on medical evidence.
This stage involves writing letters to the employee and their treating doctor. The letters should notify the employee that their employment is under review. The letter to the doctor should include a full position description which points out the main physical or psychological requirements of the role and asking the doctor to make an assessment regarding the employee’s capacity to safely perform the inherent requirements of their pre-injury/illness role.
The doctor plays a significant role in the process of investigating the injured employee’s future capacity, and will be in a better position to make a decision about the employee’s potential return to the pre-injury/illness role where the employer provides relevant detailed information.
Step 2 – Seeking further information from the employee
Prior to the review being finalised, the employee should be invited to present any further information that they believe is relevant to the review of his or her employment. This information may be presented by attendance at a meeting or in writing. The employee should be invited to have a support person present at the meeting.
The purpose of the meeting is to give the employee an ‘opportunity to respond’. It is imperative that the employee understands the importance of the meeting and that a decision will be made on future employment afterwards.
The employer should never predetermine the outcome. Preparing termination pay or a termination letter prior to meeting with the employee clearly breaches procedural fairness requirements as it reflects a decision to terminate employment prior to hearing the case presented by the employee.
If the employee fails to respond or provide any further information, the employer can continue with the review based on current medical evidence.
After the meeting, the employer should take the appropriate time to properly consider the employee’s comments and then inform the employee of the outcome.
Step 3 – Finalising the review
Finalising the review of the employee’s employment will have three likely outcomes:
- Agreement that the employee may be able to undertake alternate sustainable duties within the organisation; or
- Identifying that it is not possible to determine, at this stage, whether the employee will be able to return to pre-injury or sustainable alternative duties; or
- A decision to terminate the employee’s employment.
Employers should contact the Ai Group for advice when finalising the review and prior to making a decision to terminate employment.
Can the termination be challenged?
Yes, the employee may challenge the employer’s decision to terminate employment. This could be in the form of an employee making a claim of unfair dismissal, a breach of the general protections or discrimination. Ensuring that an employee’s injury or illness is managed in a compassionate manner, as well as following the above process will help to minimise the risk of a successful claim.
Further advice or assistance
For further advice or assistance on this topic, or any workplace relations matter, Employment Plus clients who have placed two or more candidates have free access to the Ai Group Workplace Advice Line. Call 1300 862 217, 8.30 – 5.15pm AEST Mon-Fri