Managing ill and injured employees is one of the highest-risk tasks any Australian employer faces. When a worker is injured or falls ill, several legal regimes switch on at once — and they don’t always agree. Get it right and you protect your people and your organisation. Get it wrong and one termination can trigger multiple claims.
Here’s how to do it — compassionately, compliantly and defensibly.
What’s the real issue?
Injury and illness sit at the intersection of at least four legal frameworks that apply at once:
- Workers’ compensation and return-to-work duties
- The duty to provide suitable duties
- Disability discrimination law
- General protections and unfair dismissal
The pressure to fill the role and move on is legitimate. The mistake is letting it drive the decision before the evidence and a fair process are in place. Most disputes here don’t turn on the final decision — they turn on how it was reached.
What this looks like in practice
An anonymised composite, not a real person.
A regional community services organisation employed a frontline support worker — “Maria” — in a physically demanding role. After an injury, she lodged an accepted workers’ compensation claim and was certified fit for restricted duties only. Eight months on, a frustrated manager wanted to replace her.
That impulse would have exposed the organisation on several fronts. Instead, we helped them follow a defensible path: a documented review of suitable duties, a properly scoped medical assessment with her written consent, and a trial of modified duties. Her capacity improved and she returned to a sustainable role — problem solved, lawfully.
What does the law say?
The law requires a documented, medically-informed process before any decision affecting an injured or ill employee’s job.
The four frameworks
- Fair Work Act 2009 (Cth). Section 351 prohibits adverse action because of a disability — not just dismissal, but also cutting hours or changing duties. It also protects against dismissal for a temporary illness or injury absence.
- Disability Discrimination Act 1992 (Cth). The DDA defines disability broadly — loss of bodily or mental function, disease, and conditions affecting thought or judgment. Many injuries meet it.
- Workers’ compensation, rehabilitation and WHS legislation. Once a claim is accepted, this imposes proactive return-to-work duties, including suitable duties.
- Contracts, agreements and policies. These can expand your rights — for example, a clear basis to direct a medical assessment.
The inherent requirements trap
A discrimination claim can be defended where the person can’t perform the inherent requirements of the role — but the test differs by Act:
- Under the DDA, the disability must prevent performance of the inherent requirements, and the employer must have considered whether reasonable adjustments would allow the person to do the job. This step can’t be skipped: X v Commonwealth (1999) 200 CLR 177; Qantas Airways Limited v Christie (1998) 193 CLR 280.
- Under the Fair Work Act, it’s enough that the genuine reason was the inherent requirements; there’s no separate obligation to consider adjustments.
The trap: assuming the FWA position keeps you safe. Where the DDA also applies — and it usually does — you must still explore adjustments before you act.
Three practical rules follow (the FAQ expands on each): get written consent and a letter of instruction before any medical assessment; offer suitable duties where capacity remains; and remember dismissal protection runs 12 months in Queensland and Victoria, six months in New South Wales.
What are the risks for employers?
One misstep can expose you to a general protections claim, an unfair dismissal claim and a discrimination complaint at once.
Process risks are the ones you can control:
- Acting without written consent — which can make even a damning report unusable.
- Choosing the wrong or conflicted clinician.
- Relying on ambiguous or competing reports without a strategy to reconcile them (CSL Limited v Papaioannou [2018] FWCFB 1005, as constrained by Hyde v Serco Australia Pty Ltd [2018] FWCFB 3989).
- Ignoring a later, more favourable report before acting.
- Unexplained delay, from which the Fair Work Commission may infer bad faith.
People risks are harder to control — an employee who refuses a lawful direction or alleges a conflict. Clear contractual rights and precise clinician instructions are your best protection.
Prolonged incapacity is the hardest question: how long is too long? Any decision must be evidence-based. Where an employer genuinely can’t assess capacity after a very long absence, it may be assumed the employee can’t meet the inherent requirements (Baker v Bodhicorp Pty Ltd [2024] FWC 2503). And in Moers v The Trustee for Williamson Family Trust [2025] FWC 1344, an employee who refused a contractually-provided direction to attend an assessment committed serious misconduct — and his unfair dismissal claim failed.
Our top five tips: what every employer should do
- Get the foundations in place before you need them. Build a clear right to direct medical assessments into your contracts and maintain a compliant Return to Work Policy — fix this before a claim arises, not during one.
- Obtain written consent and a precise letter of instruction. Never access health records without consent, and have concise, legally reviewed questions drafted for a suitably qualified clinician with no conflict of interest.
- Genuinely consider suitable duties and reasonable adjustments — and document every review. Explore modified duties, reduced hours and redeployment, and record each periodic review, including when nothing was available.
- Consult the employee and keep talking. Put reports to the employee, give them a real chance to respond, and consider standing them down on pay rather than terminating prematurely while evidence is pending.
- Only end employment on capacity grounds after a fair, evidence-based process. Treat termination as the last step — on current, unambiguous medical evidence, after consultation and genuine consideration of suitable duties and adjustments — and mind the applicable dismissal-protection period.
Frequently asked questions
- Can I direct an employee to attend a medical assessment?
Yes — with a genuine, documented concern about their capacity to work safely, there is a common law right to direct one, strongest when it is written into the employment contract. You still need the employee’s written consent to access their health records.
- Do I have to keep an injured worker’s job open indefinitely?
No. Injured workers are generally protected from dismissal because of their injury for a defined period — 12 months in Queensland and Victoria, six months in New South Wales — but the obligation is not unlimited. After a genuine, evidence-based process, continued employment may cease to be viable if the employee cannot perform the inherent requirements of the role.
- What are “suitable duties”?
Meaningful work within the employee’s current capacity — not necessarily the pre-injury role, and possibly reduced hours, modified tasks or a different location. Once a claim is accepted, you must take reasonable steps to identify and provide them where the employee has some capacity. If none exist, document how you reached that conclusion and notify your insurer where required.
- What if the employee refuses to attend or provide consent?
A refusal to follow a lawful and reasonable direction — particularly where the contract expressly provides for medical assessments — can amount to serious misconduct. But the direction must genuinely be lawful and reasonable, and the process must be sound.
- How long can an employee be absent before we can act on incapacity?
As a general guide, an employee is protected from dismissal for a temporary absence of up to three months’ unpaid leave over a 12-month period. Beyond that you may be able to act — but only on current, unambiguous medical evidence and after a fair process.
How Harrisons can help
One rushed termination can trigger a general protections claim, an unfair dismissal claim and a discrimination complaint at the same time — and the legal costs, compensation and disruption add up fast. Getting return to work right is far cheaper than getting it wrong.
We help Australian employers, councils and not-for-profits build defensible injury-management processes:
- Contracts and Return to Work Policies that give you the clear right to act
- Precise medical assessment instructions and suitable-duties frameworks
- Calm, expert guidance when a matter becomes complex or heads toward termination
Managing an ill or injured employee right now? Get in touch with our team today and start with a return-to-work and capacity review — before pressure forces a decision you can’t defend.
This article is general information, not legal 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.
