Managing a situation involving an employee suffering non-work related injuries can be challenging, and often difficult to navigate. It is widely misunderstood by employers that non-work related injuries automatically provide legal grounds to terminate an employee, however this is legally not the case. Employers have strict obligations they must adhere to before they can lawfully terminate an employee, and if these precautions are not taken it can lead to an unfair dismissal or general protections claim. We set out below what an employer should be cognisant of when dealing with this issue.
Adhering to Fair Work Act & Regulations
When dealing with an employee who is suffering from non-work related injuries employers are required to comply with the Fair Work Act 2009 (FWA). In accordance with section 352 of the FWA an employer must not dismiss an employee who is temporarily absent due to illness or injury of a kind prescribed by the Regulations. A prescribed injury is one that is supported by a medical certificate or statutory declaration, within twenty-four hours or a reasonable period after the absence. A limitation exists within section 352 of the FWA regarding employees whose absence extends beyond three months consecutively or three months accumulatively within a twelve month period, as this will no longer be considered a prescribed injury under the FWA. In other words, the protection under section 352 of the FWA ceases after an absence extends for more than three months and the employee has exhausted their paid personal/carer’s leave entitlements.
The case of Rezaeifard v Green Leaves ELC Pty Ltd T/A Green Leaves (2021) in the Fair Work Commission (FWC) is a reminder for all employers not to overlook the temporary absence provisions. An educator provided a medical certificate to her employer which highlighted her inability to perform her contractual obligations. Throughout this time the educator had exhausted her paid sick leave entitlements and was therefore directed by the employer to attend an independent medical examination. The report concluded that the educator was unable to perform her job requirements. The employer sought modifications of the educator’s job however this was not successful and subsequently she was dismissed. However and critically, the educator had not used her paid personal leave, consequently the FWC found in favour of the educators claim that she was unfairly dismissed.
FWC issued an important reminder to employers that:
Employees should not lose their job if they have to take six weeks off work to mend a broken bone. Not all employees will have a balance of six weeks of paid personal leave to cover such a scenario. Nor should employees lose their job if they are having surgery such as a hysterectomy, or retina attachment, or are recovering from hepatitis. A three month protection is in place for very good reason.
Determining whether an employee is fit to work?
When determining whether an employee’s non-work related injury prevents the employee from fulfilling their contractual obligations, it may be appropriate to seek external verification through an Independent Medical Examination (IME). The request for an IME must be lawful and reasonable. Depending on the circumstances the employee’s treating physician can be approached to conduct an IME or it can be a medical professional not already involved in the care of the employee. We are able to provide tailored advice to the particular facts involving the employee.
In the lead up to requiring the employee attend an IME it is important to consider the following:
- Determine the inherent requirements – this first step is often crucial to show that there is a genuine need for the information and a reasonable basis for the direction. The inherent requirements of a job are the essential activities that must be carried out to fulfil the purpose of an employee’s position. The job description for the role is often a good place to start in an inherent requirements assessment; and
- Prepare the request for information – the employer’s request for information must be carefully considered by reference to the inherent requirements and any surrounding circumstances that are relevant to the doctor’s consideration.; and
- Discuss the process and obtain consent – the final step is to ideally have a discussion with the employee in relation to the proposed course of action. In some cases, an employee may agree in which case the employer will be able to send the request for an IME otherwise a formal direction to attend may be required. In the circumstance where the employee refuses to attend an IME that was requested on reasonable and necessary grounds an employer should seek legal advice before proceeding to bring the employment relationship to an end.
The 2021 FWC case of Dr Amir Reza Zakaei Fard v Royal Melbourne Institute of Technology (RMIT University) dealt with an employee’s refusal to comply with directions from their employer to complete an IME to assess suitability for work and as a result was terminated for serious misconduct. The FWC when deciding the case considered the efforts which the employer had taken to request that their employee attend an IME. The FWC concluded that due to evidence which proved the employer had made countless efforts over a two month period to request that the employee attend an IME there had been sufficient notice provided to the employee. Ultimately the grounds for the request made by the employer were not only reasonable but were also made sufficiently known to the employee. As such the FWC concluded that the termination of the employment was sound and defensible.
If your employee has sustained non-work related injuries and it is impacting their ability to perform the inherent requirements of their role we would be pleased to discuss this with you. We recommend seeking legal advice before any decisions are made to ensure a clear plan is formulated to support the needs of the employer and the employee in question. This is also important to minimise any claims brought by the employee against the employer.
If you have any queries, please do not hesitate to contact Michael Bishop or Amelita Hensman of our Employment Law Team
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