Dismissal…for health reasons?
Fitness to work is a minefield that could cost your business
Dismissing employees for any reason is a delicate process. Appropriate behaviour, communication, confidentiality and legitimate grounds are required. The concept of procedural fairness, giving the employees the right of reply to employment issues and the chance to rectify behaviour or performance when appropriate is a must in all situations. A slip in any of these areas can result in an adverse action or unfair dismissal suit. Balancing these requirements is further complicated when the health and fitness to work of the employee is in question.
Most employers that contact ACAPMA are hesitant to involve themselves in discussions around an employee’s health, but there are situations where it is necessary, and it is important to do it the right way.
There are many instruments and agencies that are involved in the management of injury at work including, the Fair Work Act nationally, the State based workers compensation and Work Health and Safety (OHS) legislation, as well as disability discrimination mechanisms and indeed the policies and pervious behaviour of the company itself. Complying with these instruments can be confusing.
Best practice highlights tips for achieving compliance and the best outcomes for the employees and the business:
- When dealing with an injury/illness it is important to address any other workplace issuessuch as poor performance, rudeness, mobile phone use etc separately and distinctly from the illness. This is best done as soon as possible and documented thoroughly;
- When managing the injury/illness be sure to follow the businesses established policies or patterns;
- When managing the injury/illness maintain contact with the employee, collecting medical certificates and checking in with them from time to time, this is particularly important for long term certificates;
- When managing the injury/illness work with the doctors and return to work coordinators to ensure that the employee is fit for the actual duties to be undertaken. Provide detailed job descriptions and notes on physical requirements of the position; and
- When managing return to work remember to include possible alternative duties in the discussions with the employee, doctors and case managers.
It is important to ensure that as employers you are supporting the rehabilitation of your employees, however there are instances where the employees injuries or restrictions will mean that they will not be able to perform the duties that they did pre injury. This situation must be handled delicately and professionally, failure to manage the process, or reliance on flimsy reasons for dismissal (such as economic downturn) can and do result in adverse action claims, as seen in the recent Silver v Rogers and Rogers (2012) where the court found that the employee was dismissed unlawfully on the basis that his health might impact on the productivity of the business.
ACAPMA members are reminded that they can call 1300 160 270 for assistance with these and other workplace relations matters.