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
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]
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
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
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
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
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
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).