Australia: Procedural fairness and communication issues when terminating injured workers

Workplace Directions - April 2011
Last Updated: 3 May 2011
Article by Stephen Marriott

A recent decision by Fair Work Australia (FWA) highlighted the need for employers to clearly communicate with injured workers and ensure that they are afforded procedural fairness when dealing with issues of reinstatement.


Mr Bormann worked for Visy Board for 21 years. Over this time he had approximately 10 workers compensation injuries and subsequent claims.

In October 2008, Mr Bormann was injured in a non-work related paint-balling incident. In July 2009, he returned to work on restricted duties. Soon after, Mr Bormann advised Visy Board of continuing pain and, in December 2009, Bormann was stood down due to safety concerns regarding the company's duty of care.

In February 2010, Visy Board sent Mr Bormann a letter regarding his employment and stated that they could not offer him work until the 'status of [his] injury and its relationship to work [had] been resolved.'

On 30 August 2010, having received no response from Mr Bormann, Visy Board terminated his employment.

Clear communication with injured workers

FWA found that there was no valid reason for the dismissal, stating that Visy Board did not outline the communication requirements they sought from Mr Bormann.

The letter sent by Visy Board outlined that it had not dismissed Mr Bormann, but had said that his return to work was conditional on the resolution of his injury and its relationship to work. It was held that, in doing so, Visy Board had specifically stated that notification should occur when Mr Bormann's condition improved. As such, FWA found that it was reasonable for Mr Bormann not to contact Visy Board for seven months because his condition had not changed.

FWA further noted that, as between this February 2010 letter and the termination letter of 30 August 2010, there was a 'significant and unsubstantiated change in Visy Board's earlier position', which was not communicated to, or discussed with, the employee.

Affording Injured Workers Procedural Fairness

FWA was also concerned with the lack of procedural fairness accorded to Mr Bormann simply because he was not at the workplace.

FWA held that Visy Board did not give Mr Bormann an opportunity to respond because his receipt of the letter of termination was the first advice of this termination.

FWA acknowledged that Mr Bormann attempted to debate the termination of his employment after the fact and that clearly this request could not be characterised as an opportunity to respond.

FWA concluded that the termination of Mr Bormann's employment was 'harsh, unjust and unreasonable' in that it lacked a valid reason and was procedurally unfair.

Reinstatement of an Injured Worker

The Commission noted that Mr Bormann has been unable to work in his current position and there was no indication that he would be able to work in his current position if reinstatement was ordered.

Nevertheless, the Commission ordered reinstatement, recognising that, in this context, reinstatement would involve Mr Bormann resuming leave without pay.

Lessons for Employer

This decision comes as a timely reminder for employers, that injured employees on a leave of absence must be dealt with in a clear manner.

Employers should:

  • Ensure employees are clearly instructed as to the level of communication required while absent
  • Regularly follow up on absent employees and inform them of the status of their employment
  • Give absent employees a chance to respond to any concerns
  • Ensure that absent employees are afforded the same fairness as regular employees (e.g. a support person).

Extension of time

This decision was deferred pending determination of an extension of time issue, which clarifies the nature of the time period for lodging a claim.

Fair Work Australia rejected Bormann's argument that the 14 day period for lodgement began when his notice expired, rather than when he was informed of the termination of his employment.

Senior Deputy President Matthew O'Callaghan said the question of whether Visy Board was obliged under the National Employment Standards to provide notice was 'a matter entirely separate from the actual termination' of his employment.

However, the application was allowed to continue as 'sufficiently exceptional' circumstances were found.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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