Safe Work Australia estimates that 500,000 Australians sustain a work-related injury or illness annually. This represents an economic cost of AU$68.1 billion. The Australian’s workers compensation system bears direct costs of AU$9 billion per annum in income support, treatment and rehabilitation and lump sum payments. Employers also face indirect and direct costs whenever a worker is ill or injured including a loss of productivity, legal fees and having to hire someone to replace the worker whilst they are away recovering.
These enormous costs have led to the launch of the National Return to Work Strategy 2020-2030 which provides a framework for national action to improve return to work outcomes for Australian workers.
It is in everyone’s best interests to try to encourage injured/ill employees to work when they are fit to return. Yet this issue can be somewhat difficult to deal with for employers when an absence becomes an extended one.
Employer obligations to assist employees in returning to work
Whether an illness or injury is work related or not, an employee has the right to come back to work if they have a partial capacity to do so. Failure to do so may give rise to a discrimination claim. Therefore workplaces do indeed have an obligation to help employees return to work and should assist the affected employee in developing a return to work plan.
In cases where an employee’s absence stretches on for months with no prospect in sight for their return, it’s natural for an employer to consider whether or not they have grounds for dismissal. Before any action is taken, an employer can request information from the employee in order to make an informed decision.
Requesting medical information
Employers do have a right to ask an employee for medical information, such as a doctor’s certificate, in relation to an extended period of leave. They may also ask for information regarding how long an employee could be away from work in order to assist in developing a return to work plan.
Medical certificates need to be accepted at face value as the final word on the matter that the employee is medically unable to work and that sick leave must be paid .
There is limited mechanism for an employer to call their employee’s doctor and ask questions about the illness or injury necessitating their absence. Employers are, however, permitted to contact their employee’s doctor in order to clarify notes they have made. An example would be if a certificate said the employee had pain in their ankle, but their job required a lot of walking around, so an employer would ask the doctor if it’s safe for the employee to do their job.
It can also be reasonable for an employer to request that an employee attend an Independent Medical Assessment (IME) if;
- An employee is proposing to return to work following a workplace injury and/or extended period of sick leave.
- An employee has been on restricted duties for an extended period of time and is about to return to full duties.
- Medical certificates provided by the employee are vague or lacking in detail.
If an employee refuses to provide medical evidence of their illness or injury, or attend an IME, and it is reasonable for an employer to make such requests, then paid sick leave can be withheld and there may be grounds for disciplinary action or dismissal.
How long can an employee be absent without facing dismissal?
Fair Work Regulations contain protections for employees who are temporarily absent from work due to illness or injury.
Under the Act, employers are prohibited from dismissing temporarily ill or injured workers if they provide evidence for the reason for their absence.
Subject to different regulations, generally an absence for illness or injury will not be a ‘temporary’ absence and will not be protected if:
- The absence extends for more than three months, or the total absences over the course of 12 months exceed three months; and
- The employee is not on paid leave for the duration of the absence.
If an employee’s absence is not deemed to be a temporary one, an employer may have reasonable grounds for dismissing the employee.
Considerations before dismissing an employee for a long absence
Even after an employee has been absent for more than 3 months in total and used all of their paid sick leave, they may still be protected from dismissal for other reasons. For example, additional protections may apply under state and territory workers compensation and rehabilitation laws.
The following points should be carefully considering before any decision is made to dismiss an employee who is away due to injury or illness;
- Have the employer’s policies and procedures been followed?
- Is the absence a temporary absence within the meaning of the Fair Work Act?
- Is the obligation period to keep a job open under worker’s compensation legislation passed?
- Is there up-to-date medical evidence?
- Is an independent medical examination required?
- Can the employee return to work within the “foreseeable future”?
Once all of the above has been considered, employers must still follow the appropriate rules for carrying out a dismissal and employees may challenge the termination of their employment by making:
- An unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable
- A general protections claim if the reason for the dismissal is another protected reason
- An unlawful termination claim
- A claim under a state or federal anti-discrimination law.
How can employers minimise disability discrimination and unfair dismissal claims?
Employers should always have a mindset of helping employees return to work before any consideration is given to dismissal. A checklist must be kept to ensure all obligations are being met and procedures are followed. Employers should also maintain records of long-term ill health cases and maintain its currency.
It is best practice to consult with a HR professional and/or employment lawyer before dismissing an employee. If you have any questions about dealing with long term absences, contact Harrisons for advice.
Claire Harrison is the Founder and Managing Director of Harrisons, a flourishing HR consulting business that sprouted in 2009 from Claire’s passionate belief that inspiring leaders and superstar employees are the key success factor to any business. With over 20 years’ experience, Claire has worked as a HR Director of multi-national organisations, as a Non-Executive Board Director, and a small business owner. Claire’s corporate career includes working with companies such as BHP, Westpac, Fonterra and Mayne Nickless.
