Having to Manage employees on lengthy sick leave, or with ongoing injuries, requires the balancing of business needs along side employees’ rights, says Labour Solutions Australia Managing Director, Andrew Northcott.
Employers can, understandably, become frustrated when they have a function empty due to an employee’s sickness and doubt surrounding when they’ll be fit for work, he says.
Anything beyond that and you might then consider evaluating their employment and if they’re definitely going to be fit to do their obligations”.
In examples of extended sick leave, Connolly says, “you must take a glance in the worker’s job description and what they were contractually engaged to perform in the commencement of the employment, against their sickness and against any medical evaluation or reports from their physician”.
Employers are eligible for obtain this information, he says, since they have the right to understand whether an employee is competent to do the “constitutional requirements” of their occupation. But he encourages employers to obtain their particular appraisal of the employee and to “evaluate and scrutinise the treating physician’s report” when deciding if the worker’s employment can continue.
They must likewise consider whether the worker may have the ability to do other obligations at work, says Connolly, a partner at Mills Oakley.
Under the Fair Work Act, employers are obliged to handle workers fairly and go to sensible lengths to keep the employment relationship.
Besides specific obligations that might use under workers compensation laws, in the event the company does not consider alternative duties, or modified duties for an injured or sick employee, it could face a discrimination complaint as well as an unjust dismissal complaint for not doing everything practical to avoid needing to fire the worker, he says.
Employers must also document their strategy to such issues. Documentation of efforts to find options to termination of employment could be tremendously valuable in defending a case of discrimination or unjust dismissal.
An employer must also consider whether the worker may use their annual leave to cover their lack, or take leave without pay, if no accommodations could be made.
Again, there isn’t any duty on employers to make this kind of offer, Connolly says.
Everything an employer considers in its pursuit to become “acceptable” needs to become balanced against its rights to run a company and make certain its positions are filled, he adds.
Although requirements under workers’ compensation laws differ from state to state, the procedure for avoiding an unfair dismissal claim – once the related harm management and return-to-work duties have finished – is normally the identical, Connolly says.
The procedure, which ought to be carefully recorded, comprises:
- Communication – workers must be advised that after a long but unsuccessful procedure and efforts to manage them back to work, their continuing employment will probably be reviewed;
- Consultation – the worker must be given the chance to present any additional medical materials for the company to contemplate at this time;
- Further evidence – if the employee presents further reports the company should get its appraisal of the worker’s abilities. A crucial question to ask medical assessors is: “In what timeframe is the worker going to be competent to do the constitutional demands of the position?”
- Evaluation of available work – based in the separate medical reports, the company should consider whether it can offer or continue to provide alternative or modified duties; and
- An informed choice – just once the preceding measures are taken (and consistently in the foundation of the medical evidence), and following consultation together with the longterm wounded worker, should an employer move to terminate their employment.
- Getting back in touch frequently “jolts these workers into actions, or enables employers to transfer them off the books”.
Once an employee is proven to be fraudulently taking sick leave or forging medical certificates employers shouldn’t be unwilling to act, Connolly says.