spoke to Patrizia Mercuri, partner in Workplace Relations & Safety and Rachel Cubela, special counsel in WorkCover at Lander & Rogers law firm about the approach employers should take when dealing with ill or injured workers.
“One of the primary considerations for employers is determining whether the injury was work related or not,” Mecuri said. “If it was, then obvious schemes would kick in. But where an injury is not work related, employers still need to be mindful of their various obligations, which include OH&S obligations, anti-discrimination laws and employee entitlements under industrial legislation. The most important thing for employers to do is to get an understanding of which frameworks will be operating.”
Mercuri added that employers need to be vigilant in their treatment, as they are most likely to get into difficulty by addressing one particular framework but neglecting other laws that may be applicable. This could lead to a failure to comply with obligations such as accommodating disability.
“Employers are sometimes unaware that there might also be anti-discrimination provisions in workers compensation legislation which apply to their situation that they must comply with,” said Cubela.
“There are also similar provisions in place under the Fair Work Act
which are referred to as ‘General Protection’ provisions and prohibit employers from taking adverse action against employees” said Mecuri. “Essentially the key here is to keep an open mind when dealing with workers. Ultimately employers will be looking to return an employee to work or come to a decision that the employee cannot perform the inherent duties of their role – but be realistic about what you can or can’t do to support them.”
“The employer’s attitude is important – I’d suggest putting yourself in the employee’s shoes as a way of ensuring that they are treated sensitively,” said Cubela. “Don’t let anything cloud how you deal with the worker or distract you from all of the obligations you must follow.”
Mercuri and Cubela advised that laws and requirements may vary between the commonwealth, states and territories.
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The management of employees who are ill or injured is difficult for HR managers to navigate due to the complex and changing multitude of legal obligations and jurisdictions involved.