Extended Sick Leave – Unfair Dismissal
Extended Sick Leave
Managing workers on extended sick leave or with long term injuries requires careful consideration of both the needs of the business and the employees’ rights. Sometimes dismissal is unavoidable despite the health status of the employee.
Employers can avoid unfair dismissal claims by ensuring that they follow and adopt a procedurally fair process and have a legitimate reason for dismissal. Termination of employment due to an employee’s illness or incapacity is fraught with regulatory and litigation risk, particularly as employees are afforded multiple protections under the unfair dismissal regime, in addition to workers compensation, anti-discrimination and disability discrimination legislation.
As an employer, you are duty bound to ensure the needs of ill and injured workers are accommodated. In certain circumstances, however, this is not always reasonable or practicable.
In the recent decision of Reynato Reodica v Bunnings Group Ltd, Mr Reodica’s employment had been terminated by the employer as he was no longer able to carry out his work. His termination was precipitated by a workplace injury, which he claimed left him sensitive to cold temperatures. Mr Reodica brought an action against Bunnings for unfair termination on a number of grounds, including the failure on the part of Bunnings to offer him alternative work. The Commissioner held that the termination was lawful, in that Mr Reodica was unfit to perform the inherent requirements of the job.
The dismissal was held not to be harsh, unfair or unreasonable because Bunnings did everything it reasonably could have done to give Mr Reodica an extended period of time to see if his medical conditions would improve, permitted a support person to work alongside him and provided him with an opportunity to respond to his pending dismissal.
So what can employers learn from this decision?
- Clearly outline the role and responsibilities of the role in order to effectively demonstrate the inherent requirements of the job.
- Avoid changing the position description or assigning a permanent role, if you are providing alternative work or making adjustments to the existing role for an injured or incapacitated worker.
- Collate information confirming the employee’s incapacity to work, including independent medical assessments, as a basis for any decision regarding injured/ill employees. Provide the employee’s General Practitioner with a copy of their job description as a means to determine and review their capacity to effectively work within that role.
- Document any work undertaken by the injured/ill employee and note as part of the company’s rehabilitation procedure.
Above all, employers MUST ensure that they have done all that is reasonably possible and practicable to accommodate the needs of these employees before effecting a dismissal. If continuing employment in their specific role is not viable and the employer has a valid reason for dismissal, then the dismissal is likely to be considered fair and equitable. Advice should always be sought prior to termination, as the nature of each dismissal is likely to be different depending on the circumstances of each case. If you have a long term ill/injured employee in your workplace, or to discuss any aspect of business or personal law, contact Julia Adlem and her team at Adelaide Legal on (08) 8410 9494