Case Review:  No right to indefinite leave
A recent case at the Fair Work Commission has confirmed the principle that a business is not required to hold open a role indefinitely for an employee who is not able to physically complete the role.

Case details
The Perth based bus driver had been on leave for almost eight months due to back and neck pain.  Initially the employee applied for workers compensation, but it was rejected on the basis that the pain was due to a degenerative condition and not a result of his duties as a bus driver.

The employee received surgery in October 2020 and in November 2020 the business provided the employee with notice that he had exhausted all of his leave and that it could not continue to employee him for the recovery period of four to six months that the prognosis outlined.

In bringing the unfair dismissal claim the employee argued that as the business was large and financially stable it should have held open his role for the recovery period.

In his decision Commissioner Williams noted, “In these circumstances, I am not satisfied it was reasonable for [the business] to continue to accommodate the [worker’s] incapacity by allowing him to remain employed on leave without pay for this further period”.

Learnings
It is imperative for businesses to work with and support employees through illness and injury, however there comes a time where business decisions need to be made to protect the business and the employment of all staff.

These decisions need to be made in consultation with the employee and based on reasonable assessment of the physical requirements of the role and an assessment of any potential alternative arrangements.

ACAPMA reminds members that this special situation has been explored in detail in the HR Highlight Series:  Injured Outside of Work;

Here to Help
ACAPMA Members are reminded that 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.

Elisha Radwanowski BCom(HRM&IR)
Executive Manager Employment and Training
ACAPMA

 

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