Imagine this scenario. An employee suffers an injury at work. They are off work for several months with an accepted workers compensation claim. Then WorkCover tells you the employee can return to work, but with restrictions. Say, a weight limit on lifting or time restriction on standing. This may give management some headaches in practice. Or it might be unclear when the employee can return to work. Can the employer just terminate the employee because they can’t do the job anymore?
Well, not so fast. The law is a mass of overlapping provisions with the apparent intention of deterring employers from terminating injured employees. Considerable compensation and penalties can result if employers get it wrong. For instance:
1. Workers compensation legislation around the country prohibits dismissing employees for varying periods of time because they have an accepted claim;
2. Discrimination legislation imposes requirements on employers to make reasonable adjustments unless unjustifiable hardship is caused;
3. Unfair dismissal case law requires consideration of the inherent requirements of a particular job as well as procedural fairness.
Employees with a residual disability may still be able to make a valuable contribution to a business and employers should make a real effort to accommodate them. If this can’t be done then an employer should:
a. Properly brief an independent medical specialist with all the details of the job and direct the employee to attend the appointment to assess their work ability;
b. Give the employee an opportunity to review and respond to the report;
c. Give consideration to the employee’s response including any medical information and reports;
d. Make their own analysis of whether the employee can perform the inherent requirements of the job and whether reasonable adjustments are able to be made which would not cause unjustifiable hardship.
This guidance does not just apply to workers with accepted workers compensation claims but any employee with an injury, whether work related or not. It may not be necessary in every case, but this is a complex area with potentially significant consequences for all parties involved. Employers are urged to tread carefully and obtain advice for specific cases. Please contact us if you would like help in this area.