Can an employer refuse to mediate if a worker has been 'unfit' for over a year?

Fair Work decides if it was reasonable for employer to await employee's return

Can an employer refuse to mediate if a worker has been 'unfit' for over a year?

The Fair Work Commission (FWC) recently dealt with a worker’s claim that he was unfairly dismissed and that his employer unjustly refused to mediate with him.

The employer argued that it has been over a year since he was declared “unfit for work,” thus, it was not reasonable to expect them to engage in mediation.

The worker, Greg Healy, filed an unfair dismissal against Wage Inspectorate Victoria (WIV). He was employed as a child employment authorised officer from June 21, 2021, to September 13, 2023.

He said it was unfair dismissal due to WIV's refusal to heed medical advice recommending mediation for workplace complaints, including safety violations causing injuries rendering him unfit for work.

He argued his complaints weren't addressed properly, and it wasn't safe to return to work without mediation and consultation.

On the other hand, WIV argues the dismissal was fair as the worker was unfit for work for 18 months, his complaints were unsubstantiated, and mediation was unwarranted. It further alleged misconduct by the worker, including breaches of the Code of Conduct.

Employer refuses to mediate

The worker detailed three workplace injuries and subsequent stressors, reporting them to management but claiming inadequate response. He also raised concerns about workplace safety, alleging breaches of the Code of Conduct and equal opportunity laws. However, WIV denied these allegations.

Regarding the worker's online activity, WIV found tweets allegedly from his account expressing political views, potentially breaching the Code of Conduct. He also faced complaints of divulging personal health information and harassment, leading to his suspension pending investigation.

Medical assessments indicated his unfitness for work and recommended mediation for his return. However, WIV refused mediation, leading to his dismissal.

Ultimately, WIV terminated the worker's employment, citing his inability to meet job requirements and ongoing absence. His response failed to address his capacity to perform his role, and WIV deemed mediation unreasonable.

WIV countered by asserting that it had valid grounds for dismissing Healy: his prolonged incapacity to perform his duties. They emphasised his 18-month unfitness for work and the absence of a foreseeable return.

Should the employer wait?

According to records, WIV maintained that he was duly informed of the reason for his dismissal and given an opportunity to respond, which did not demonstrate his fitness for work. They argued against the reasonableness of engaging in mediation, citing previous investigations that found Healy's complaints unsubstantiated.

Additionally, WIV cited Healy's misconduct on Twitter, expressing strong political opinions, as another valid reason for dismissal. They argued that the circumstances of Healy's dismissal were fair and urged the dismissal of his application.

WIV had a valid reason to dismiss Healy. "He could not do his job. His incapacity had lasted a year and a half," the FWC said.

"There was no reasonable and imminent prospect of Healy’s return to capacity. Even if [he] had been able to return after 3 months, it was not reasonable to expect WIV to invest such time in Healy’s return to work in addition to the 18 months that had already been devoted to this end,” it added.

“When considering the fairness of a dismissal for reason of incapacity, there is often an inverse relationship between periods of past incapacity and expected future incapacity. How far one might endeavour to look into the future for a realistic possibility of return to capacity depends in part on how far one can look back on a history of past incapacity.”

“The longer the period of past incapacity, the shorter the period that an employer might reasonably wait for a return to capacity. Of course, length of service and other factors are also relevant here. But in the present case, after 18 months of incapacity, WIV did not need to wait for three more months, or three more days, to have a valid reason to dismiss [the worker],” it said.

Thus, the Commission said the employer’s decision “not to engage in mediation was reasonable” and added that “it would likely have been futile.” It likewise said that the termination of his employment was not unfair or unreasonable.

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