An employee of an un-named organisation went on sick leave following an investigation into complaints about bullying and harassment. The investigation found no bullying had taken place, and the employee’s worker’s compensation claim for stress was rejected. At the same time, the worker obtained a minor physical injury, and took over three months off using accrued personal leave as well as other entitlements, Holding Redlich reported.
In these circumstances, terminating an employee can be difficult. Michael Selinger, workplace relations partner at Holding Redlich, stated this is due to the variety of protections given to employees to protect them from unfair dismissal following long sick/injury leave.
“This includes the right to bring an unfair dismissal or adverse action claim if their employment is terminated because of their absence from work due to illness or injury,” Selinger stated. “There are worker’s compensation protections for a worker who sustains an injury in the course of their employment, making it unlawful in some states to terminate their employment within six months of the injury.”
In this instance, the employer advised the worker that all their paid leave had been used, and they were now on unpaid leave. They then requested the worker to identify when they were likely to return to work, and asked for medical evidence substantiating their claims of incapacity.
This was followed by directing the worker to be medically examined independently, as they did not provide a ‘meaningful response’ to the employer’s enquiry. The employee refused, and was then terminated.
Although unfair dismissal proceedings were initiated, the actions taken by the employer demonstrated they had followed correct procedure, and the charges were successfully resisted.
Key HR take-aways
Selinger highlighted three points that employers should take away from this case:
Be sure to understand the exact nature and extent of the illness or incapacity of the worker.
Obtain information from the worker and those treating them regarding their capacity to return to work and perform their role. Consider whether you can reasonably accommodate the worker’s needs.
Only terminate employment once all leave has been exhausted, and they have been absent from work for over three months (six in cases of worker’s compensation injuries). Make sure you have taken all steps to assess their capacity to return to work.