Dismissing employees for health related reasons leaves employers open to adverse action claims – as has been vividly illustrated by a recent ruling from the Federal Magistrates Court.
In Silver v Rogers & Rogers , the court found that an employer had contravened the Fair Work Act by dismissing an employee for health reasons and for failing to pay termination benefits in lieu of notice. The Federal Magistrates Court ordered the worker to be paid the benefits and three months’ pay, plus interest. A penalty was also imposed.
The court ruled the employee had been the subject of adverse action when he received notice of termination and was dismissed on the same day. It did not accept the employer’s claim that the economic downturn had contributed to the employee’s dismissal. Rather, it found the employer had dismissed the employee out of concern that his health might impact on the productivity of the business.
So, rather than using an employee’s health problems as a way of getting rid of them, employers would be well-advised to instead be proactive and work towards the effective rehabilitation of the employee in question.
This area can be a tricky one for many employers – given the different areas of the law involved, including workers’ compensation, OHS, disability discrimination and employer obligations under the Fair Work Act. However, law firm Lander & Rogers recently released the following list of practical tips for employers trying to manage ill and /or injured workers:
Address any issues that might be unrelated to the employee's illness/injury (eg: poor performance or behaviour that might be caused by factors other than ill-health or injury).
Take a proactive approach to the employee's rehabilitation and management. Maintain communication with employees when they are off work and consult with them about their return to work.
Manage medical certificates by ensuring that a long-term ill or injured employee continues to have evidence of their incapacity. Often these employees can simply "fall off the radar" despite the fact that they remain "on the books".
Work with medical and health sector practitioners to assess the employee's fitness – don't go it alone.
If required, consider what alternative duties the employee might be able to perform temporarily until they are able to return to their normal role.
Ensure that you comply with workers' compensation notification requirements and OH&S "safe systems of work".
Ensure that you comply with your company's own policies and industrial instruments.
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