Eastern Commercial Lawyers

Managing ill and injured Employees

19-May-2011
Employers should focus on ensuring reasonable management action and preventative steps when managing ill or injured employees to avoid workers compensation claims/other claims  and the significant adverse effects and costs that are caused by such claims to a business.

In order to prevent such claims, managers must focus on implementation of preventative OH &S measures together with ensuring strict and transparent adherence to company procedures when carrying out performance management and disciplinary action of employees who have or who are susceptible to developing illness or injury at work.

It is important to highlight that many employees are in an extremely vulnerable mental and physical state in these types of cases and greater care needs to be taken by Managers to ensure their actions are reasonable and that substantive and procedural fairness is afforded to such employees if  misconduct/ performance issues arise (that are unrelated to the illness/injury).

We highlight that once a workers compensation claim has been filed with workcover, that there is little action that an employer can take to defend such claims as often the insurer will determine the final outcome of such claims on the Employers behalf without adequate input from the employer, with the ultimate outcome being increased insurance premiums costs for the Employer.

There is also the associated problems which arise including a breakdown in relationships between employees, lost productivity, together with the risk of repeat injury occurring in the workplace in these types of cases.

Before embarking on performance management/disciplinary action in these types of cases, Employers should have regard to the relevant legislative provisions below:

Workers Compensation Act 1987

Under section 248 of the Workers Compensation Act 1987 (NSW) it is an offence to dismiss an injured worker because the worker is not fit for work as a result of an injury and within the period of 6 months after the worker first became unfit for employment.

Fair Work Act (Cth) - Unfair Dismissal

We advise that Section 385 of the Fair Work Act (Cth) provides that an employee whose employment has been terminated by the employer may apply to the commission for relief in respect of the termination of that employment on the grounds that "the termination was harsh, unjust or unreasonable".

Fair Work Act (Cth) - Adverse Action

Part 3-1 of the Fair Work Act contains a set of general protections against discriminatory or wrongful treatment. Under section 340 of the Fair Work Act, a person must not take adverse action against another person. There is express coverage of workplace rights in the context of ill and injured employees in these provisions. An Employer must not take adverse action against an employee because of amongst other things, their "physical or mental disability". (see Section 351(1)  of the Fair Work Act)  Further, an Employee cannot be terminated by reason of being temporarily absent from work due to workplace illness or injury. (see section 352 of the Fair Work Act).

Disability Discrimination Act 1992 (Cth) - Claims

We advise that the Employer is also bound by the Disability Discrimination Act 1992 ("DDA") in particular Section 15 of the DDA (and mirrored state legislation in the Anti Discrimination Act) which provides that its unlawful for an Employer dismiss an Employee on grounds of their physical or mental disability. We note that a defence applies that the Employer is entitled to terminate the Employee's employment  if they are unable to carry out the inherent requirements of the position.

 
Managers need to ensure that there is a focus  at the front end on OH&S compliance- employers have an overarching obligation to ensure the health, safety and welfare of their employees.
 
If the difficult circumstance arises that an employee's performance or conduct is inadequate (unrelated to their illness or injury), we strongly recommend that the Employer seeks legal advice prior to taking any performance management or disciplinary action against the employee to avoid the risk of legal claims.
 
If you have any questions regarding the contents of this article, please do not hesitate to contact John Murray, partner of our office on 0414 294 260 or by email on john.murray@eclawyers.com.au
 
 

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