Dealing with injured workers

One of the more difficult issues faced by employers is dealing with ill and injured workers. After a prolonged absence, or an indication that an employee may not be able to return to their pre-injury duties, employers often find themselves asking, what do I do now?

This is an area fraught with risk in terms of the possible claims an employee may commence against their employer. For example, the Fair Work Act 2009 (Cth) prohibits an employer from dismissing an employee due to them being on a temporary absence because of illness or injury. A temporary absence is one that doesn’t exceed more than 3 months in a 12 month period.

Also, the Workers Compensation Rehabilitation Act 2003 (Qld) prohibits employers dismissing an employee solely or mainly because the employee isn’t fit for employment in their position because of an injury within 12 months after the employee sustained the work injury. In such a scenario, an injured employee may be able to make an application requesting an order that their employer reinstate them to their former position.

It goes without saying that employers have an obligation, both legally and morally, to support injured workers in their recovery and return to work. However, where it can be evidenced that the employee will no longer be able to perform the inherent requirements of their position, then an employer may be able to take action. However, it’s imperative that employers obtain medical evidence to support any such position and ensure that they follow a fair and reasonable process in discussing with the employee the medical evidence and its implications on the employee’s return to work. Failure to do so may lead to possible claims including unfair dismissal, unlawful termination, adverse action or discrimination.

KEY POINTS: Managing an ill or injured employee is a difficult exercise given the possible claims that may be made by employees. Careful management of the process and reference to appropriate medical evidence is crucial if employers want to limit their exposure to these types of claims.