Effective management of ill or injured workers is one of the most problematic aspects for employers and for the human resource management department. It has always been fraught with a lot of regulatory as well as litigation risks, such as those HR professionals and managers needing to implement serious employer’s decisions.
When dealing with these special group of ill and injured workers (whether physically or mentally), the root for this difficulty is the significant probability for the intersection of numerous state and federal legislation requiring both small and large business employers alike to take into consideration competing business regulations and complex industrial obligations.
While every employer will normally have the best of intentions, a great variety of legal claims can follow once management decisions are made in relation to an ill or injured worker, especially in the event that a decision is made for an employee’s dismissal.
The team from the Industrial and Employment Law are conducting breakfast seminars in Brisbane and Perth on August 21 and 28 respectively to cover a whole lot of areas under occupational hazards and safety particularly including relevant risks, current case experiences, and strategies on how employers can work and decide around workers with injuries, illnesses, and disabilities while minimising and eliminating any exposure to additional risks.
In this report, we have highlighted some key points and principles that we have drawn from the most recent case experiences enlisted with the Fair Work Commission and Federal Court:
- When investigating misconduct cases, take into consideration the behaviour in question and whether it is being caused by an underlying psychiatric or psychological condition. When there is a probable indication of an underlying explanation for the behaviour present in some mental dysfunction or illness, ensure to exclude it (or otherwise account for it) before largely relying on the conduct as the basis for the disciplinary action or dismissal.
- There will be instances where an employer is entitled to go beyond the medical information provided by the employee regarding his health asking for more detailed information or by requiring the employee to cooperate with the management’s own investigation on the relevant issues through an independent examination. This prerogative does not depend on the worker’s consent for as long as the employer will act as reasonably as possible.
- It will be ultimately legal to dismiss a worker who, on the basis of an illness or injury, ceases to be capable to perform the basic requirements of their position. Before getting to this point however, the employer must first ensure that the appropriate procedural justice is fully extended to the employee—fairness will differ from one case to another. Among the factors to be considered in these circumstances include the thorough investigation on the issue, implementation of the employer’s procedures, external advisers in relation to the pertinent issues and facts, and appropriate feedback and participation from the employee prior to the effectiveness of the dismissal.
- Even in circumstances where the employee is not lawfully protected from dismissal due to their absence from work, with the consideration of an injury or illness, has ceased to be temporary for the compliance with the Fair Work Act, dismissal might still be considered as unfair and unlawful.