Injured employees – What information can I request and when can I terminate?

October, 2014

By Clayton Payne

What should an employer do if it is concerned that an injured worker cannot return to their previous duties? What sort of information can the employer request to take into consideration before reaching a decision? When can the employer proceed to terminate the employment?

A recent decision of the Fair Work Commission examined these matters.

In Columbine v. The GEO Group Australia Pty. Limited, the Applicant brought an unfair dismissal claim against her employer, with whom she was employed as a correctional officer.

The Applicant had previously injured her shoulder and hip in separate incidents, and had received workers’ compensation payments. She was eventually placed on suitable duties undertaking administration work, and was ultimately informed, two years after her incapacity had arisen, that those duties were no longer available and that there was no other work available to her which would accord with her medical restrictions.

The Applicant provided a medical certificate from her GP, advising that she was fit to return to work as a correctional officer, for four hours per day, with a 10 minute limitation on standing, and a 20 minute limitation on walking at any one time.

The Respondent advised the Applicant that it was considering terminating her employment as she could not fulfil her position as a correctional officer, but invited the Applicant to provide it with any further relevant information before it made its decision.

As such, the Applicant eventually provided another certificate from her GP saying that she could work as a correctional officer without restriction. The Respondent also requested an authority from the Applicant permitting it to liaise with her GP directly. The Applicant failed to provide this.

The Applicant’s employment was subsequently terminated on the basis that she had not provided all of the information requested by the Respondent, and “ … was not prepared to engage with (the Respondent) in reasonable steps to ensure her health and safety and that of others at work.”

Commissioner Bissett found that the GP provided no explanation as to how he had come to the conclusion in his second report, as to why the Applicant was now fit to return to her normal duties. She also found that the Applicant had failed to provide the Respondent with an authority enabling it to communicate with the GP independently of the Applicant.

The Commissioner went on to find:

I am satisfied that, in the totality of her actions and her correspondence, (the Applicant) indicated that she was not prepared to engage with (the Respondent) in steps to address any health and safety concerns in relation to her return to work.

The Commissioner found that the termination of the Applicant’s employment was not unfair in the circumstances, dismissing the complaint. The Commissioner did this in part on the basis that the Respondent was required to meet its health and safety obligations and that, for example, a requirement that the Applicant provide an authority permitting the Respondent to communicate with her GP was a reasonable direction.

Conclusion

Even if an employee injured themselves at work, and eventually returns to work in suitable duties, that will not of itself prevent the employer from later terminating their employment. If permitting the carrying on of these suitable duties is unsustainable (for example, they may impose a heavy burden on other employees), and the employee cannot return to the inherent or genuine occupation requirements of their original position, then the employer may be in a position to contemplate the legitimate termination of the employee’s employment.

Care should however be taken by the employer before a final decision is made and action is taken. Appropriate legal advice can assist the employer in these circumstances in taking the correct approach to the matter.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

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