Injured worker — termination

Under s352 of the Fair Work Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury.

Commonwealth, state and territory legislation prohibits the dismissal or victimisation of an employee by an employer in the workplace when the employee is absent from work due to personal illness or injury, including a period of absence on workers compensation. Protection from dismissal when an employee is absent on workers compensation is usually provided by the relevant state or territory workers compensation law, while a general protection from dismissal when an employee is temporarily absent from work due to personal illness or injury is provided by the Fair Work Act and the Fair Work Regulation.
 
Unfair dismissal — inherent requirements of the position
 
An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal, although this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise be unlawful. It is highly likely that there would be no valid reason for the dismissal in that event. Further, a dismissal based on incapacity to perform the inherent requirements of the position may not be a valid reason for dismissal, if the employee has a capacity to perform the inherent requirements of their job.

Plainly, there can be a valid reason for the dismissal of an employee where he/she simply does not have the capacity (or ability) to do their job. See Pederson v H.J. Heinz Company Australia Limited t/as Golden Circle Limited [2010] FWA 8631.
 
Pre-injury position
 
Fair Work Australia determined that the requirements to be considered are the requirements of the employee’s pre-injury role, not the requirements of employment modified to meet the needs of the injured employee. This case illustrates to employers that they may dismiss an employee for incapacity to perform the inherent requirements of the job, despite being temporarily able to modify the position. Where an employee has an ongoing inability to perform the inherent requirements of the role, and no reasonable alternatives for redeployment or job modification exist, termination may be justified. See J. Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022.

Fair Work Act and Fair Work Regulation
 
Under s352 of the Fair Work Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury. Under Reg. 3.01 of the Fair Work Regulations 2009 it is not a ‘temporary absence’ if the employee’s absence extends for more than 3 months, or the total absences of the employee, within a 12-month period, have been more than 3 months, and the employee is not on paid personal/carer’s leave for the duration of the absence. 
 
The employee must also comply with the notice of absence and evidence requirements of the applicable industrial instrument for the protection to apply.

Under the same regulation, an employee absent on workers compensation is not considered to be absent on a period of paid personal/carer’s leave.
 
Calculating 3 months
 
It appears that if an employee’s absence because of illness or injury lasts for more than 3 months, or if their total absences for illness or injury in a 12 month period amount to more than three months, the protection will not apply to them if any part of the temporary absence is not on paid sick leave (personal leave).
 
Factors that are relevant in determining this are the duration of the employee’s absence and whether the employee is on paid personal/carer’s leave for the duration of the absence. In calculating the 3 month period, both paid personal/carer’s leave and unpaid leave (because of illness or injury) should be counted, if the employee takes unpaid leave only or a combination of both types of leave.
 
If the person only takes paid personal/carer’s leave, this leave does not count towards the 3 month period.
 
For example, if an employee is on paid personal/carer’s leave for a 3 month duration and continues on paid personal/carer’s leave beyond 3 months, the employee will continue to be protected from dismissal under the Fair Work Act (s352) until the employee exhausts the entitlement to paid personal/carer’s leave.
 
The reference to ‘the duration of the absence’ in regulation  3.01(5) requires an employee to be on paid personal/carer’s leave for the entire period of the absence which is because of an illness or injury in order to continue to be protected from dismissal beyond a three month period.
 
Prescribed kind of illness or injury
 
The Fair Work Regulation defines the meaning of a ‘prescribed kind of illness or injury’ for the purposes of the Fair Work Act. A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
  • 24 hours after the commencement of the absence; or
  • such longer period as is reasonable in the circumstances.
The Fair Work Act (s.12) defines a 'medical certificate' as a certificate signed by a medical practitioner. 'Medical practitioner' means a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.
 
A prescribed kind of illness or injury exists if the employee:
  • is required by the terms of a workplace agreement to notify the employer of an absence from work; and to substantiate the reason for the absence; and 
  • complies with those terms.
If the employee fails to comply with the requirements under the Regulation with respect to notification of the absence to the employer and providing a medical certificate or statutory declaration, then the employee is not protected under this part of the Fair Work Act and the Regulations. See Rogers v Millenium Inorganic Chemicals Limited [2009] FMCA 1.
 
New South Wales
 
Under Part 8 of the Workers Compensation Act 1987 [NSW], it is an offence if an injured employee is dismissed by the employer, within 6 months of incapacity, solely or principally because the employee is not fit for employment in a position as a result of an injury that entitles the employee to workers compensation.
 
This ‘protection of injured workers’ provision applies to an employee covered by a modern award or federal agreement. In Fabros & Hotel Intercontinental Sydney [1993] NSWIRC, it was determined that the (then) s237 of the Industrial Relations Act 1991 [NSW] (now Part 8 of the Workers Compensation Act 1987 [NSW]) which offers injured workers the right to apply for reinstatement to their position within 2 years of the injury occurring, applied to an employee covered by the (then) federal Hotels, Resorts and Hospitality Industry Award 1992.
 
See also Plunkett v Silverbrook Research Pty Ltd [2011] NSWIRC 1031.
 
Victoria
 
Under the Accident Compensation Act 1985 [Vic] employers are required to provide injured workers with a job the same as or equivalent to the one the injured worker was doing before the injury or illness. Alternatively, if the worker is unable to return to this position but has a current work capacity, the employer is required to provide the worker with suitable employment. This requirement applies for the first 12 months of incapacity to work, unless the employer can show this would cause unjustifiable hardship for the employer.
 
Queensland
 
Under Chapter 4 — Part 6 — Protection for Injured Workers of the Workers Compensation and Rehabilitation Act 2003 [Qld], within 12 months after a worker sustains an injury, the employer must not dismiss the worker solely or mainly because the worker is not fit for employment in a position because of the injury.
 
South Australia
 
An employer with less than 10 employees is required to keep a position open for an injured worker for 12 months. An employer with 10 or more employees is required to keep a position open indefinitely. See RETURN TO WORK ACT 2014 [SA].
 
Western Australia
 
Except in certain circumstances, the employer of an injured worker who attains at least partial capacity for work within 12 months of the date upon which he/she becomes entitled to receive weekly payments of compensation, is obliged to provide the worker with a job as reasonably practicable to the job he or she was doing immediately before becoming entitled to receive weekly payments. See Workers Compensation and Injury Management Act 1981 [WA].
 
Tasmania
 
The employer is required to keep the position open for the injured worker for 12 months, unless it is not practicable to do so or a reason for the position no longer exists. In addition, the employer is required to make arrangements to make available to the injured employee suitable alternative duties. See Workers Rehabilitation and Compensation Act 1988 [Tas].
 
Northern Territory
 
There is no requirement under the legislation for the employer to keep a position open for an injured worker but the employer must take all reasonable steps to provide suitable employment and, if unable to do so, he or she must refer the worker to an alternative employer incentive scheme developed by the Northern Territory WorkSafe Authority. See Workers Rehabilitation and Compensation Act [NT].
 
Australian Capital Territory
 
The employer has an obligation to keep a position open for 6 months, if requested by the injured worker. See Workers Compensation Act 1951 [ACT].
 
 

WantToReadMore

Get unlimited access to all of our content.