Managing employees who are sick or injured can often be problematic. There are a number of potential risks that can arise out of this situation including claims for:
- Unfair dismissal;
- Workplace bullying;
- Adverse action;
- Breach of contract;
- Unlawful termination; and
- Discrimination.
To help employers with the potential minefield, we have prepared the following guidance of the various steps to take below.
Identify the condition / injury
The condition/injury and the stage that it is at will have a direct effect on how you approach the situation.
There are broadly three types of condition/injury:
- conditions where the employee has successfully made a workers’ compensation claim;
- conditions were the employee has been unsuccessful with a workers’ compensation claim; and
- conditions that are not related to work.
There are restrictions which apply where employees are in receipt of workers compensation as well as positive obligations on you to enable their return to work.
Length of absence
Calculate how long the employees been absent and ask for an indication of when they may be fit to return.
If the employee has only been absent for a short time, then there are risks for any employer that takes action to end the employment. The longer the absence, the far more reasonable an employer will appear for wishing to address the issue.
Understand the employee’s job
This goes further than simply considering the employee’s job title.
Review the current job description and familiarise yourself with the inherent requirements of the job. This entails understanding the fundamental duties of the role and what you as an employer require of the employee to successfully perform.
Obtain medical advice
You can obtain from the employee’s treating doctor a prognosis together with an indication of when they may be fit to return. Alternatively, you can arrange for an independent medical assessment to be conducted.
Both stages will require the consent of the employee however an obligation to provide this consent should be included in the contract of employment for all employees as a matter of course. If the employee withholds their consent, then you can take action against them.
As with any medical assessment, take the time to ask the right questions and provide the doctor with the information that is relevant to the employee’s job. If you find there are gaps in the information requested then go back to the doctor for a further opinion.
Refer any potential adjustments you are considering to the treating doctor for their view.
Consider reasonable adjustments
If the employee cannot undertake the inherent requirements of their job then you should consider what changes, either temporary or permanent, you could make that would enable the employee to be able to do so.
This may include changes that assist the employee to return on a phased basis or which serve as temporary adjustments to reflect the employee’s condition at that time. When considering adjustments, you should have regard to any medical prognosis that is available.
There are a range of adjustments that employers can consider when an employee is unable to perform the inherent requirements of their job. There is a positive legal obligation on employers to make such adjustments other than where they can be found to cause an unjustifiable hardship on the employer.
Unjustifiable hardship can include considerations such as disproportionate cost or negative impact on the service that the employer provides to its customers.
Discuss the position with the employee
Once you have a good grasp of the position, then arrange to discuss the situation with the employee. It is important that you obtain their view of their condition and how it impacts on their employment.
Often, employees are quite realistic in such situations and can offer genuine insight as to the potential for their return as well as options as to what adjustments can be made. An employer that does not take steps to involve the employee before decisions are made will likely be found to have behaved unfairly.
Follow a fair process
If you decide that you cannot accommodate the employee’s continued absence or make reasonable adjustments to their duties to facilitate the return, then you are embarking on a termination process.
As with any process that can result in an employee’s dismissal, it is crucial that it follows the necessary steps required by the employee’s contract of employment, any relevant Award or EBA, any employer policies and, importantly, the law. Even if an employee cannot perform the inherent requirements of the job, it is possible to invite a potential claim simply by adopting an unfair process.
Ensure that you involve your HR and/or legal team. Maintain in writing good records of the steps you took to consider the employee’s position, any adjustments that could be made (and why they couldn’t) and the evidence on which you relied. If the employer has any vacant positions, you must be able to demonstrate why they were not suitable for the employee.
Give early thought as to whether it is appropriate and possible to obtain from the employee a deed of release which will eliminate the potential for claims.
If in doubt at any stage of the process, take legal advice as the consequences of getting the process wrong could be significant.
Ashbrooke Law. Innovative. Commercial. Responsive.
Disclaimer
Ashbrooke Law publications are intended to provide guidance and general information. They should not be relied upon as legal advice. Formal legal advice should be sought on matters of interest arising from this article.