The laws in relation to injured workers make it clear that
employers cannot terminate the employment of an injured worker,
within certain time periods, because they are injured. Doing so may
be seen as adverse action, or discriminatory, or may be an offence
under the Fair Work act or workers compensation legislation.
So what do you need to do when an employee is injured at
The basic obligations are to notify the insurer of the workplace
injury, comply with requests for information from the insurer, and
cooperate with the insurer and worker to assist the worker return
to work as the earliest date possible.
But return to work can be difficult if the employee's injury
is psychological and allegedly arose out of unreasonable workplace
conduct such as bullying and harassment. Frequently, workers who
are on workers compensation or prolonged sick leave because of a
psychological illness arising out of work, are not keen to return
to their prior employment precisely because they say doing so will
exacerbate, rather than assist in the treatment of, their
However, employers still have an obligation to support a return
to work, and it is only when all reasonable options for this are
exhausted (including addressing the allegations of bullying and
harassment if there is any substance to that allegation) that an
employer can look at termination of employment on the basis that
the employee simply cannot return to work.
As an employer, you may want to proceed to an exit strategy, but
you need to be careful about forcing the pace on this because of
the obligation to encourage return to work, and to avoid adverse
action and so on. For example, if an employer forcibly proposes a
return to work that is not agreeable to the injured worker, the
injured worker may believe they have no choice but to resign, then
allege that there was a constructive dismissal, and bring a claim
for unfair dismissal. This is what happened in the recent case of
Tania Tresize v MAX Solutions Pty Ltd (2015).
Ms Tresize was receiving workers compensation benefits due a
psychological injury allegedly caused by bullying and harassment in
the workplace. Her employer wrote to her to discuss a return to
work but the terms of the return to work plan weren't agreeable
to Ms Tresize. After being away from work for two years, her
employer notified her that if she continued to ignore their
requests to discuss a return to work, they may have to take
disciplinary steps including terminating her employment. She
resigned, but alleged that her resignation was in fact a
constructive dismissal, as she felt the employer had left her with
no other choice.
Her subsequent unfair dismissal claim failed when the Fair Work
Commission held that there were other options open to her that
could have enabled her to continue her employment (such as
responding to the process) and therefore her resignation was in
fact a resignation, and not a constructive dismissal.
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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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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