Australia: How to: Manage ill or injured employees

Last Updated: 5 December 2016
Article by Lauren Drummond
Most Read Contributor in Australia, September 2018

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:

  1. What is the type of illness or injury?
  2. 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.

  1. Do you understand the nature of the illness or injury and the level of incapacity?
  2. 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.

  1. Can reasonable adjustments be made to facilitate the employee to return to work and perform their regular duties?
  2. 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:

  1. How does the employee's incapacity affect them being able to carry out the tasks and duties of the position?
  2. What tasks or duties does the employee have no capacity to perform? What tasks or duties can the employee perform safely?
  3. What adjustments can be made to the position to enable the employee to perform the work safely?
  4. 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.

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.

Authors
Lauren Drummond
Similar Articles
Relevancy Powered by MondaqAI
Seyfarth Shaw LLP
 
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”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Seyfarth Shaw LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions