Hi Aunty B
I have an employee who was hired as an onsite IT technician. We have a small team of people and have three onsite techs (including the manager).
At the moment, the employee in question has used up all his leave and sickies (now leave without pay) due to health issues caused by an accident before being employed with us.
He has come into work stating he cannot do onsite work anymore, even though that is his primary role.
I have had him at a desk for the last four weeks, however as a small business, cannot afford him in this role to be sitting at a desk. To make matters worse, I have been informed that he cannot do inhouse technical work either unless he works from his desk.
My concern is, if I cannot reposition him within the organisation, how would I go about different options and discussing with him my situation without making the position redundant as it would need to be refilled.
It is costing my business a lot of money and creating a loss to the business. To make things worse, he is talking to other staff saying he has no money and “should be on twice as much” as what he is getting paid now.
Can you PLEASE provide some advice or help and also point me in the right direction to protect myself and my business from any unlawful dismissal please.
Oh dear. It’s so hard, isn’t it? You want to do the right thing but in the end you have to think of the business, other staff and stakeholders. And when you do take action, you feel rotten!
I was talking to a boss last week who has an employee who loves riding his motorbike on forest trails. He constantly falls off and injures himself and then takes weeks off work. It’s driving this boss nuts, but what can he do?? It’s enough to make you want to be an employee!
OK, PL. The answer to this question depends in very large part on why he can’t work offsite and whether it’s clear that that is in his job description. (Yet another reason, everyone, to write very clear job descriptions!)
Our legal adviser Uncle P (Peter Vitale) says you need to explore with the employee what assistance might be made available to assist him working offsite; this might include an agreement about lifting aids, extra breaks with make-up time or other ideas that could assist.
If you, the employer, can demonstrate that, even with assistance which does not amount to an unjustifiable hardship on the employer, the employee is incapable of performing the inherent requirements of the position, then you will be justified in terminating. If this guy really can’t do the job then it’s a matter of dotting the i’s and crossing the t’s.
In practice, the employer’s position is also made more difficult because in the case of an unlawful termination claim under the Workplace Relations Act, the onus is on the employer to prove that the illness/disability was NOT a reason for the termination.
Uncle P says that you can contact him for more advice. (Tell him Aunty B sent you and he might give you a good rate.)
And by the way, we recently tried to help a boss who was having difficulty with an employee with a disability.
Rachel Butler from the not-for-profit Australian Employers’ Network on Disability had the following to say, and it may help your situation as well:
It sounds like there are a few really important conversations needed in this particular situation. Apart from recommending you buy our Managers Guide: Disability in the Workplace here’s what I would suggest. Please note, these are suggestions and not legal advice.
First, look at the position description that your staff member was recruited for and review whether there is a clear articulation of the “inherent requirements” of the job. Clarify the work performance required by reviewing the quality and productivity requirements for the role as well as your “code of conduct”. If there was a three month review, look at your data from this performance review and identify whether performance has changed.
Think about anyone else within the organisation who breaks your code of conduct or doesn’t meet your work performance standards. If you can think of a few other people who don’t meet these standards then your task becomes more difficult. Arrange a meeting with your staff member.
Give a few days notice of the meeting and tell your employee that you want to discuss work performance. Provide an opportunity for your employee to have someone else attend if they choose. This could be a disability employment specialist or an advocate.
During the meeting be clear about which aspects of the role are being adequately performed and which aspects require improvement – this includes both task related aspects such as customer service as well as interpersonal skills.
Ask your employee if they require any workplace adjustments to make it easier to achieve the requirements of the role. If he is unsure about what adjustments would help, you can suggest a workplace assessment. The Federal Government may provide funding and assistance with implementing adjustments – visit www.jobaccess.gov.au.
To protect your organisation against either direct or indirect discrimination it is important that you do not undertake any disciplinary action prior to providing the opportunity for reasonable adjustments to be implemented. Document your processes. If you need additional assistance call the Australian Employers Network on Disability on 1300 363 645.
Some good suggestions there!
Your Aunty B.