By Peter Vitale
With the raft of laws prohibiting discrimination and termination of employment on the basis of an employee’s illness or injury, employers need to be aware of their obligations to keep open the opportunities for a return to work.
Most employers have some experience of dealing with the need to implement a return to work plan for employees who suffer an injury at work. Those requirements are spelt out in workers’ compensation legislation across Australia.
But when the employee’s illness or injury is not work-related, employers can’t automatically assume they can terminate the employee’s employment for not being able to do their job. Some recent cases highlight some of the issues employers need to consider.
Companies can make a big effort to accommodate a sick worker and still be found to have dismissed him. In the case of Badger v Commonwealth Bank of Australia, Marshall Badger, who started working as a teller for the bank in 2003, took about 169 days sick leave between September 2003 and May 2005. Following advice from his doctor, Badger did not attend work between May and October 2005 because of asthma, a digestive problem and depression. A return to work program was implemented in November but was unsuccessful. Badger did not attend for work after 21 December 2005.
During 2006 the bank made numerous attempts to have Badger’s fitness for work assessed by independent medical practitioners and to initiate a return to work program. The bank’s efforts were ultimately unsuccessful.
In December 2006, the bank notified Badger it considered him to have abandoned his employment. The Australian Industrial Relations Commission ultimately found that the bank had in fact terminated Badger’s employment.
But Senior Deputy President O’Callaghan said that the preliminary evidence showed that Badger’s lack of co-operation and failure to provide medical certificates meant that his unfair dismissal claim had no reasonable prospect of success.
Other cases highlight the need to ensure procedural fairness is afforded to employees at all times. In Fenger v P&O Maritime Services Pty Ltd, Marius Fenger had suffered an injury at work which rendered him unable to perform his normal duties as chief engineer on a seagoing vessel.
After some months off work, his employer decided to initiate surveillance by a private investigator. Video evidence was obtained of Fenger engaging in physical activity that was entirely inconsistent with the injuries he had reported to several medical practitioners.
Following an investigation and a meeting at which Fenger was given an opportunity to, but did not, respond to the allegations that he had deliberately misled the medical practitioners, his employment was terminated for serious misconduct.
Although the approach of the employer was criticised, the employee’s unfair dismissal claim was rejected by the commission. The case illustrates the need for employers to have hard evidence, backed up by a fair process before terminating employees suspected of feigning injury.
By contrast, the employee’s claim in a similar case, Paech v Big W, was upheld. The employer terminated Karen Lee Paech’s employment for serious misconduct relying on video surveillance showing the employee engaging in activities including driving and playing pool. The commission found the activities to be explicable and consistent with the injuries reported by the employee and that the employee had not misled medical practitioners.
The recent case of Rawcliffe v Northern Sydney Central Coast Area Health Service illustrates the need for employers to exercise care before making a determination that an employee is unable to perform the inherent requirements of the position.
Clifford John Mr Rawcliffe was a nurse who suffered from epilepsy and consequent sleep deprivation and psychiatric illness. After being rostered on a sequence of night and day shifts, which were likely to exacerbate his condition, Rawcliffe tendered his resignation.
He subsequently claimed that the direction to perform work according to the roster was unlawful discrimination in breach of the Disability Discrimination Act. The Federal Magistrates’ Court found that the failure of the employer to take account of his condition and provide him with more amenable working hours was an unreasonable requirement, which resulted in Rawcliffe being discriminated against.
The lesson for employers:
- Don’t jump to conclusions about an employee’s health or their capabilities.
- Make sure actions which might disadvantage an employee are supported by appropriate medical evidence.
- Make sure that any steps taken to discipline employees follow a considered and fair procedure.
- Don’t always believe the video tape.
