In the fourth and last of the series on managing injuries and illnesses incurred outside of work, this weeks HR Highlight will explore the business requirements when an employee who is injured outside of work is no longer able to meet the inherent physical requirements of the role and termination for incapacity is considered.

Non-work injury review

In Part 1 of the series, https://acapmag.com.au/2020/01/hr-highlight-injured-outside-of-work-part-1-care-communication-and-entitlements/, we explored the nature of a non-work injury and the business requirement to seek information in a compassionate and professional way that will allow for the appropriate management of the injury.  The seeking of the diagnosis (what is wrong), the prognosis (when will the employee be well) and any suggested management steps (restrictions on activities) is an important part of the process in managing a non-work injury or illness. 

As outlined in Part 1, this communication should include notice to the employee that the business will require a Fit To Work Certificate from a doctor outlining that the employee is fit and able to undertake the inherent physical requirements of the role.  Once this clearance is in hand the business can return the employee to work as normal.  While this will be the case in many instances, in some the business may receive a Fit To Work Certificate that deems the employee fit to undertake work tasks, but with restrictions, or a light duties element to it.

In Part 2 of the series, https://acapmag.com.au/2020/01/hr-highlight-injured-outside-of-work-part-2-light-duties-request-and-return-to-work/, we explored the requirements when an employee is declared fit to work, but with some restrictions, often called a light duties request or a return to work restriction.

As outlined in Part 2, there is no legal requirement to provide light duties to an employee injured outside of work, though there is a requirement to consider if the requested changes could be accommodated for the time period that they will be required, and to not unreasonably refuse them if they can be accommodated.

In Part 3 of the series, https://acapmag.com.au/2020/02/hr-highlight-injured-outside-of-work-part-3-extended-recovery-and-permanent-incapacity/, we explored the requirements when an employee is facing an extended recovery period, or the request for light duties are extended over time.

As outlined in Part 3, each extension of recovery period necessitates communication around the restrictions being requested and the length of time they are expected to be required.  As with initial injuries it is important for the business to communicate with the employee formally and compassionately, and to ensure that regular review of the employees condition by a doctor is undertaken.  Each extension request should be considered on its merits and facilitated if reasonable, with the clear indicator that the acceptance is for the period requested only, and will be reviewed at the inbuilt review date.

If the periods of leave due to injury become extensive either in the initial request or via extension, that is three months or more after accrued personal leave has been expended, or the restrictions are proposed to carry on for longer than three months, then the business should consider if the employee can meet the inherent physical requirements of the role and if termination for failure to meet the inherent physical requirements of the role may be appropriate.

Complex Injury; Permanent Incapacity

In the most drastic of cases of injury outside of work, where the illness or injury clearly removes the employees capacity to undertake the inherent physical requirements of the role, where the nature of the illness or injury is such that no amount of appropriate work restriction or modification would result in the employee being able to meet the basic physical requirements of the role, there needs to be a consideration of whether the employee is able to meet the inherent physical requirements of the role.

One example, though simplified, would be if an employee suffered an injury that completely and permanently removed their capacity to speak.  In such a case the role the employee held would need to be considered within the framework of this incapacity.  If the employee was a console operator responsible for providing customer service, answering customer enquiries, addressing emergency situations via the Public Address System and liaising with emergency services, customers and colleagues in an emergency situation, then it would be reasonable to seriously question if the employee could meet the inherent physical requirements of the role.

Inherent Physical Requirements of the Role

It cannot be overstated the importance of all position/job descriptions including a list of the Inherent Physical Requirements of the role.  What constitutes an physical requirement will vary from position to position, and it is important that these are clearly separated into the MUST HAVE (inherent) requirements and the NICE TO HAVE (other or peripheral) requirements. 

When constructing or reviewing position descriptions care should be taken to clearly understand all of the physical requirements of the role and to express them specifically.  It is a start to state that “it is an inherent physical requirement of the role to stand for extensive periods”, however, by adding specificity the value of the statement is increased; “it is an inherent physical requirement of the role to stand in a single location for almost all of the rostered shift at the counter while serving customers and observing the forecourt”.  This difference adds value to Fit To Work Certificates and assessments undertaken by medical professionals. 

A doctor may think they understand the nature of a role, and may even seek an understanding from the employee as to what they “do” at work, but detailed and specific physical requirements expressed in a position description, that is provided to the employee to share with their doctor and have the doctor make reference to in the Fit To Work Certificate, results in a safer return to work for the injured employee, more confidence for the business in the safety of returning the employee to work, better protection for the business in the event of another injury or reinjury while at work, and will also form the basis for any discussions around physical incapacity and continuing employment.

The Inherent Physical Requirements for each role will be different, but such a section in a standard Console Operator position would look something like;

“In order to hold the role of Console Operator, employees will be required to meet the following physical requirements as intrinsic requirements of the role;

• Ability to lift and stack store items within occupational health and safety limits, from and to the ground level and onto shelves with weights up to 25kg

• Ability to comfortably stand unsupported while discharging duties, including standing at a single location for almost all of the rostered shift while serving customers and observing the forecourt which involves twisting of the trunk and neck on a regular basis and regular reaching above shoulder height

• Ability to clean premises and facilities including toilets, basins, floors, windows and forecourt, including but not limited to; sweeping, moping, dusting, disinfecting, emptying bins

• Ability to move, manoeuvre (and utilise as appropriate) fire extinguishers

• Ability to move, manoeuvre (and utilise as appropriate) portable gas cylinders

• Ability to respond to spills onsite, including  utilising the on site Spill Kit which would involve working at ground level with reaching and lifting of spill kit materials from ground level

• Ability to undertake tank dipping procedures, including working at ground level, opening hatches, large screw thread caps and lifting, holding and gently replacing a large dip stick all at ground level

• Ability to communicate by voice with customers, colleagues and emergency services in the daily discharge of customer service and emergency response duties”

When an employee is injured at work a detailed physical requirements list can provide the doctor with the best picture of the role and thus result in the best health outcomes for the employee and the protection of the business.  A copy of the position description or at the least an extract from the physical requirements section, should be provided with or in the communications to the employee requesting the Fit To Work clearance certificate, along with an instruction that the business would like the Certificate to specifically address each of these items, this ensures that the doctor reviews the requirements.  If the business does not yet have physical requirements listed in the position descriptions, or they need clarification, they should be reviewed as soon as possible, but in the immediate term, when dealing with a specific injury, they should be expressed in detail in the body of the communication letters with the employee.

Termination Due To Inability To Meet The Inherent Physical Requirements Of The Role?

In a case when the business is presented with a diagnosis and prognosis that states the employee has lost the ability to speak and will not regain it, and the employee is a Console Operator, it is clear, based on the inherent physical requirements of the role that the employee is not capable of undertaking the role that they are employed to do.  This would be referred to as permanent incapacity. 

Again it is worth noting that the response will differ GREATLY if the injury had occurred at or related to work, however, in the case of a non-work injury or illness an inability to meet the inherent physical requirements of the role is grounds for termination of employment.

These cases can be devastating to the employee and extremely difficult to manage for the business.  While many businesses will explore possible redeployment options with the employee, to other roles that may be available within the business that do not require the skill or capacity that has been lost, the business is not obligated to create a position, nor to continue to employ an employee whose injury or illness has resulted in permanent incapacity.

The business should follow a rigorous process however, in exploring capacity, confirming its understanding, and communicating with the employee.  There will be a need for second opinions and detailed Show Cause letters and many conversations with the employee all of which should be documented fully.

Once the business is in possession of a diagnosis and prognosis that clearly states permanent incapacity a Show Cause process should be initiated.  The business should issue the employee with a letter calling for the employee to Show Cause as to why the should not be terminated for an inability to meet the inherent physical requirements of the role.  This letter should, like all Show Cause letters, outline the businesses understanding of the situation and what it is basing that understanding on (position description, pervious communication on injury, certificates provided).  This letter should, like all Show Cause letters, outline that the business requires a written response (typically within 7-14 days) and that any written response will be considered prior to a final decision being made, and that if no written response is made then the likely outcome will be termination with notice for inability to meet the inherent physical requirements of the role.  It is important in the case of this Show Cause letter though, to ensure a compassionate and human approach.  In addition to managing their illness the employee will now be facing unemployment and such a situation calls for tact and compassion.

The process would be similar, but less definite, when instead of a permanent incapacity the business is advised of a long term recovery that exceeds the reasonable timeframe of 3-6 months.  In these instances the business should ensure that detailed communication with the doctor over the actual physical requirements has been undertaken, and that the “reasonable person” or Bar Sniff Test has been applied…that is; has the business really considered options to work with the restrictions? Is the recovery time period really “too long to handle”?  and Is the response of termination the only option?

In considering a long term recovery, there may be an argument to be made for the option of extended leave without pay being offered in place of termination.  In such cases it would be important for all parties to have a clear understanding of the agreement, something that acknowledges the standard response, the deviation from that response, the timeframe that will apply, and the possible outcomes at the end of that time period;

“that the business acknowledges that due to extended recovery from a non-work injury the employee is not able to meet the inherent physical requirements of the role and the standard business response is termination of employment, however, at this time and in this case, the business has determined to allow a period of 6 months leave without pay, at which point recovery and capacity will be assessed, and if you are cleared by the doctor as fit to work you will be returned to the roster (though modifications to current hours and days may be necessary due to other staffing requirements), and if you are  not yet fit to work you will be asked to Show Cause as to why you should not be terminated for failure to meet the inherent physical requirements of the role.”

Termination for incapacity, even in the case of a non-work injury, should be considered a last resort.  Businesses who support staff, particularly though non-work injuries, with communication, clear expectations and responsible practices, often report the appreciation of the employees is clear in their work ethic and results.  However, businesses must ensure correct procedure and communication, in all non-injury management discussions to ensure all parties are clear on the requirements and expectations in order to avoid unnecessary conflict.

A Note on Timing

When managing incapacity or extended light duties in the context of a non-work injury, the question is often asked; How long is too long?  The answer will depend on the restrictions, the business, the staff profile at the workplace (are there a lot of casuals or all permanent staff) as well as the nature of the work itself.  Case law shows 3 and 6 months as the range in most cases, but each case should be assessed on its own particular merits.

Here to Help

Navigating workplace injury is difficult, navigating a non-work injury even more so.  There is no standard response, every situation will differ.  ACAPMA is on hand to assist members in exploring their situation and crafting customised responses and scripting to help take the confusion and angst out of what is a fraught interaction.

ACAPMA members are also reminded that the ACAPMA Employment Professionals are available to assist with employment, safety and training compliance. For more information email employment@acapma.com.au

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au its free for members. ACAPMA membership is affordable at only $880 per year for a single site and valuable with sites gaining HR and IR advice support and representation as well as a raft of other benefits and discounts.