Joining me today to talk about how to manage ill and
injured workers is Troy Wild, who's an Associate in the
Industrial and Employment Law Team at HopgoodGanim; Troy thanks for
Thank you very much Kate, pleasure to be here.
It's great to have you. Now, Troy, managing ill and
injured workers is an area of human resources that poses a number
of risks for workplaces and HR professionals. What do you see, I
guess, are some of the key risks?
Well, the risks are numerous, it's a big topic, Kate. The
area is highly regulated under various Commonwealth, State and
Territory legislation and it does remain a significant area of
concern for employers. This is particularly the case when faced
with long term absenteeism, whether managing an ill or injured
employee's return to work or their dismissal. Employers need to
exercise caution so as to avoid potential liability, including in
terms of unlawful discrimination, unfair dismissal and breach of
general protections under the Fair Work Act, workers compensation
claims and breach of contract claims.
And, Troy, are there any common traps that you see that
businesses fall into when they're trying to manage these
Well perhaps one of the most common traps Kate is an employer
failing to consider and take into account that in these types of
situations employees are often in a highly vulnerable emotional
state, which in itself makes the management process all the more
difficult and fraught with risk. The golden rule I suppose is
always to act strictly in accordance with available medical
evidence and to avoid making assumptions of a medical nature. In
other words don't play doctor, but as most HR professionals
will know from their own experience medical information provided by
an employee is often incomplete, out of date, ambiguous. Common
examples of some narratives that are found on medical certificates
include things such as fit for light duties, unfit for normal work
on account of a medical condition, well what does that mean?
It's very unclear. So if an employer has genuine concerns that
available medical evidence is unreliable or uninformative then
employers need to ask for additional medical information so as they
can properly manage the situation and most importantly manage their
health and safety obligations.
And can employers send the employees to doctors if they
think that the information they have is not enough?
Yes they certainly can, that remains a common law right of an
employer to seek additional medical information, again to satisfy
workplace health and safety obligations.
So just I guess finally Troy what are your top tips for
HR practitioners when it does come to managing ill and injured
workers aside from the medical evidence point?
Certainly position descriptions, make sure they're up to
date and they accurately describe the inherent requirements of a
role to be performed. This will avoid any arguments about this
later and it also makes it easier to obtain medical opinions from
treating doctors and medical examiners. Be proactive, if an
employer is on notice of possible mental health issues or that
medical certificate's relied upon to establish an
employee's fitness for work is unreliable then employers need
to take charge and seek additional medical evidence at an early
stage. Otherwise an employer may be held liable for any additional
injury that actually occasions to the employee or a co-worker which
might be caused by a person's lack of capacity to safely
perform their role.
Well some good advice there and thanks for giving us
your insights on this complicated issue.
Pleasure Kate, thank you very much for the opportunity.
That was Troy Wild who is an Associate in the Industrial
and Employment Law Team at HopgoodGanim. Now listeners if you have
any questions you can send them through either using the panel on
your screen or of course via email to
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.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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