Employee Dispute Series: Part 4E – Handling Ill or Injured Employees – Dismissal due to injury

Posted by Malcolm Campbell on 06 March 2019
Employee Dispute Series: Part 4E – Handling Ill or Injured Employees – Dismissal due to injury


Previously we covered entitlements related to Non-Workplace injuries and how absence from work can be managed. Now we’ll look at when dismissal due to injury can be considered.

Inherent requirements of the job

It is a widely accepted that if it is established that an employee is unable to fulfil the inherent requirements of their job for a reasonable period of time, an employer will have a proper basis upon which to terminate the employment.

Having a proper basis to dismiss is however only the first step in the process. Every employer would be wise to ensure that the process of determining whether to, and then in fact terminating, an employee is handled in a fair manner and complies with the terms of any relevant contract. Care must be taken to ensure compliance with both Part 8 of the Workers' Compensation Act 1987 (NSW) and protections against Adverse Action and/or Unlawful Termination under the Act.
When can dismissal be considered?

To terminate an employee who has been absent due to illness or injury for a lengthy period of time, an employer must firstly determine the applicability of any relevant Workers Compensation laws (see above) and the provisions of the Act to ensure that the relevant minimum periods of time have passed

Under sections 352 (General Protections) & 772 (Unlawful Termination) of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Rule 3.01 (5) of the Fair Work Regulations 2009 states that an illness or injury is not a prescribed kind of illness or injury if:

a) either:
i. the employee’s absence extends for more than 3 months; or
ii. the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and

b) the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.

Secondly, an employer must genuinely satisfy themselves that the employee cannot fulfil the inherent requirements of their role and will be unlikely to be able to do so in the short to mid term.

In order to provide an employee with procedural fairness and a reasonable opportunity to have input into the situation, an employer should openly involve the employee in the process. Given that the employee will be absent from the workplace, the most appropriate way to do this initially is by way of written correspondence. After the employee has been engaged by way of written correspondence it may also be necessary and appropriate to arrange a meeting where the matter can be discussed in more detail.

At a minimum this correspondence should:

  • Explain that due to the lengthy absence of the employee, short-term arrangements were put in place to deal with their role however now that a longer period of time has passed more permanent arrangements need to be made.
  • Explain that the materials that they have provided to the employer to date indicate that it is unlikely that they will be able to return to their preinjury role in the short term. The employee should be invited to provide the employer any further available medical information that verifies what the short, medium and long-term prognosis of the employee's injury/illness is in the context of them being able to fulfil their preinjury role.
  • Provide a current and up-to-date copy of the employee's job description and the employee should be invited to take the letter and the job description to their medical practitioner(s) and request that they provide the employee with a letter/report outlining that medial practitioner's opinion as to the employee's ability to fulfil their role.

If the stated period of time passes and the employee fails to provide any further medical information and if after further contact there is no additional medical information provided to support a return to the preinjury role in the short to medium term, the employer may well be in a position that they can terminate the employee on the basis of their failure to fulfil the inherent requirements of the role.

It should be noted that the dismissed injured worker may have the ability to seek to be reinstated if they become fit to fulfil their preinjury role within 2 years from the date of dismissal.

On the other hand, if the employee provides medical information that suggests they will or may be able to undertake their preinjury role in a relatively short period of time extreme caution should be exercised in terminating the employee's employment for failure to fulfil the inherent requirements of the role.

Rather, ongoing communication and consultation should occur with the employee to keep track of their progress in line with the medical information that they have provided to the employer.


Series Concluded

This has been our final instalment of our Employment Disputes: Insights to help you avoid claims

As you can see, handling ill or injured employees is a complex minefield.

Creating strong employment policies and procedures ensures you can respond with confidence when these situation arise.

If you missed any part of this series you can catch-up on Part 1, Part 2, Part 3 and Part 4 anytime.

If you have concerns or questions about  Employment Disputes, contact our workplace law experts to provide you with guidance and assistance to improve the situation with your specific employee and ideally across your entire workforce. Contact us today.

We specialise in providing clarity and confidence to business operators in all of their legal relationships – contact us today to discuss your legal needs.