Let's take a look at this common scenario: An employee is absent from work. They provide a medical certificate that states they are unfit for work due to a medical condition, and sets out the period of the absence. The absence continues, with the employee periodically submitting medical certificates without providing any further information about the medical condition or when they will be fit to return to work.
Employers faced with this scenario will want to know what happens next. Consider the following questions:
- What are your obligations to the employee (and vice versa)?
- Can you request further medical evidence from the employee?
- What are your options if the employee refuses to cooperate or does not respond to requests for more information?
- What steps do you need to take to return the employee to work?
- Are you required to provide modified duties or an alternative role so the employee can return to work?
- Can you terminate the employment for incapacity?
There are a number of considerations you need to take into account:
- What is the type of illness or injury?
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There are different obligations for work-related and non-work-related injuries and illnesses. Whether the absence is for less than 3 months over a 12-month period will also determine the steps you can take.
- Do you understand the nature of the illness or injury and the level of incapacity?
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Does the injury/illness relate to all or some work duties? If you do not have enough information from the employee on the medical certificate, you may need to request more information or direct the employee to attend an independent medical examination.
- Can reasonable adjustments be made to facilitate the employee to return to work and perform their regular duties?
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If a claim is made under anti-discrimination legislation, and a court or tribunal determines that the employer could have made reasonable adjustments, the employer will have discriminated against the employee if it terminates them for incapacity. If the illness or injury is work-related, you have additional obligations to keep the employee's position available and facilitate a return to work.
Step-by-step: How to consider the legal position and potential risks in managing this common scenario
Take the following steps to manage a similar scenario in your business:
Step 1: Find out whether the illness or injury is temporary
Under the Fair Work Act 2009 (Cth) (FW Act), an employee is protected from dismissal if they are temporarily absent from work because of illness or injury. The regulations prescribe that this protection exists if the illness or injury is for a period of 3 months or less (or an aggregate period of less than 3 months over a 12-month period). If you dismiss an employee who is absent for less than 3 months on incapacity grounds, you will be exposed to a claim under this protection.
Do not assume that an absence that exceeds 3 months is grounds for dismissal. The employee may still be protected from dismissal on other grounds or under antidiscrimination legislation, e.g. due to a disability.
Step 2: What to do if the absence continues for longer than 3 months
Under anti-discrimination legislation and the unfair dismissal jurisdiction in the Fair Work Commission, you can defend a claim of discrimination or unfair dismissal if the employee was dismissed on the basis that they are no longer able to perform the inherent requirements of the position.
The decision to dismiss an employee for incapacity must be based on current medical evidence about their capacity, both now and in the foreseeable future.
There is increased risk if you dismiss an employee who has been absent for more than 3 months, but is still using paid personal leave. The employee is likely to seek redress under the general protections provisions alleging that they have been dismissed while exercising a workplace right to take paid personal leave.
Step 3: Ask for more information about the injury or illness
Under health and safety laws, you must provide a safe workplace for your employees. You may have difficulty complying with this obligation if there is insufficient information about the medical condition. You can direct employees to provide further medical evidence of their injury or illness to facilitate the employee's to return to work.
There must be reasonable grounds to request the additional medical information, e.g. to determine whether the employee can perform the inherent requirements of the job safely. You will need to have regard to all the circumstances. Consider what information the employee has already provided about their absence. Is there legitimate concern about the safety of the employee or others in the workplace due to the employee's medical condition?
It is not discriminatory to require an employee to attend an independent medical examination, provided there are reasonable grounds to do so. If an employee refuses, you may have grounds for dismissal (see step 4). You should exercise caution and ensure the employee is afforded procedural fairness and an opportunity to respond.
Step 4: What to do if the employee refuses to provide further medical evidence
Employees must comply with your reasonable and lawful directions. If an employee refuses to comply with a direction to provide further medical evidence, or fails to attend an independent medical examination, there may be grounds for dismissal due to misconduct.
Always communicate with the employee in writing. Clearly state the employee must comply with the request or that disciplinary action may be taken against them for failure to comply with a lawful and reasonable direction.
Step 5: Make a decision
If the employee cannot return to work and perform any duties for the foreseeable future, there may be grounds to dismiss the employee for incapacity. However, anti-discrimination legislation prevents you from dismissing the employee on grounds of incapacity where it was possible to make reasonable adjustments to return the employee to work.
It will not be unlawful to discriminate if in the circumstances, making reasonable adjustments would impose unjustifiable hardship on your business, having regard to the size of your business and the financial impact of the adjustments.
Step 6: Requirements for employees receiving workers' compensation
You must provide ill or injured employees with suitable employment for a period of 52 weeks if the following conditions apply:
- they have incapacity for work; and
- they have filed a workers' compensation claim if the incapacity is work-related.
You are also required to appoint a return to work coordinator and consult with the employee about their return to work.
Even if a worker has no capacity to perform any duties, including adjusted duties or an alternative role, you must keep the position available for a period of 52 weeks. If the employee is dismissed for incapacity during this period, you may face penalties under workers' compensation legislation.
Seeking further medical advice
You cannot simply require the employee's medical practitioner to provide further details of the employee's illness or injury. The request must be directed at assessing the employee's capacity to perform the requirements of the role and, if so, whether they can do so safely or if there is further risk of injury/illness.
You must obtain the employee's consent to discuss their medical condition with their treating practitioner. Alternatively, you can require the employee to attend an independent medical examination.
4 key pieces of information the medical practitioner should provide
When seeking medical evidence, you should provide a copy of the position description and ask for the following information:
- How does the employee's incapacity affect them being able to carry out the tasks and duties of the position?
- What tasks or duties does the employee have no capacity to perform? What tasks or duties can the employee perform safely?
- What adjustments can be made to the position to enable the employee to perform the work safely?
- What is the anticipated period of the incapacity?
Making your final decision
When making your final decision, you should review all the information, consider the risks and make a decision to:
- return the employee to work in their pre-injury role;
- return the employee to work to an adjusted or modified role;
- take disciplinary action against the employee for failure to provide medical evidence;
- allow the employee further time to recover; or
- dismiss the employee for incapacity to perform the inherent requirements of the position.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
