A recent case has highlighted the challenges in managing the return to work of an employee with a psychological injury and has confirmed that it is “entirely reasonable” for an employer to seek clearance from a treating doctor, and “not unusual” for an injured employee to “not immediately return to the same role they had before they left”.
The employee, an executive chef, lodged an adverse action claim asserting that he was forced to resign when the business sought to implement a return to work plan that would have seen the employee return, at least temporarily, to a less stressful role working away from the other employees associated with his workers compensation claim.
The employee was placed on workers compensation for a psychological injury after developing an anxiety condition he attributed to interpersonal issues with some staff. While the employee initially sought to leave the workplace through a negotiated settlement, after 2.5 years on workers compensation, he instead sought to return to work in an alternative role.
The business, in response, outlined that as some of the staff with whom the chef had difficulties in the past were still with the business, a less senior, less stressful role as a basic-level cook with a different team at a different location was suggested.
This suggestion, being a step down in status/level and pay, as well as a significant distance from home, prompted the employee to seek confirmation that he was in fact still employed and that his position of executive chef at the original location had not been made redundant.
The business confirmed that the employee was still employed and that the position of executive chef had not been made redundant. The business also noted that; it only required to hold positions open for 12 months for injured workers, confirmed that the only position open was the one offered and that the business would need “full sign-off” from the chef’s medical practitioner that he was able to return to the workplace.
The employee then sent an email formally resigning and subsequently launched action in the FWC claiming adverse action had been taken against him. He claimed he was coerced to resign and the company’s actions amounted to a constructive dismissal.
In considering the case FWC Deputy President Nicholas Lake noted that in deciding constructive dismissal cases, it was “sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end. The fact that the applicant subjectively believed that the respondent was trying to force him to resign does not, by itself, establish forced resignation”.
DP Lake said he did not consider the business treatment of the employee while on workcover as amounting to “bullying or gaslighting”, as the employee claimed. “Rather, the [employee] had formed the view that the [business] was trying to get rid of him. Therefore, he viewed innocuous conduct by the [business] employees as being bullying intended to force him out,” he said.
He added that it would be “entirely unreasonable” to expect the company to keep the chef’s former executive chef position open for the 2.5 years he was off work.
“It would not be unusual in these circumstances, after such an extended period, that a return-to-work program would be initiated and the employee would not immediately return to the same role they had before they left. I note that the [chef] indicated his role as an executive chef was a high stress role and this contributed to his illness”, continued DP Lake.
He said the company had confirmed the chef was still employed, and its correspondence with him had been “polite and respectful”. He found that the chef had resigned of his own volition. “There is no evidence, on a reasonable view” that the company’s conduct was intended to compel the chef to resign, he concluded.
He ruled the chef’s resignation failed to meet the threshold of a forced resignation.
Lessons for all businesses
This case highlights that while it is appropriate to redeploy injured workers into alternative roles, at least initially, it is also critical that communication remains open, clear and respectful.
Even with the valid redeployment option, it was the demonstrated clear and respectful communication that acted as proof against the claim that the business had created a situation in which the employee was forced to resign.
Here to help
ACAPMA members are reminded that they can access the advice support resources and representation of the ACAPMA Employment Professionals on this issue, or indeed any other employment issue, via 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 contacting the ACAPMA Employment Professionals via employment@acapma.co.au its free for members. Click here to apply for ACAPMA Membership.
Elisha Radwanowski BCom(HRM&IR)
ACAPMA
