It’s the phone call (or the letter) that any injured worker dreads and it states something like this:
“We hoped (yeah, right!) you would recover enough from your injury to go back to your (pre-injury or old) job, but, eh look, you’ve been away on extended of leave without pay for over 2 months now.”
“You’ have no more sick leave and have also exhausted your annual leave.”
“We can’t keep you, We can’t keep your job open forever, I’m sorry (yeah right!) but we’re going to have to let you go and replace you. Surely you understand that?”
It happens all the time! And many injured workers are pressured into accepting this situation ; others are (falsely) led to believe that their employer is within their rights to, well yes, replace them.
Guess what? It’s not on and it is illegal to terminate an injured or ill worker who is on temporary leave to recover.
It’s not acceptable to treat injured workers as faulty parts that can be replaced
This is particularly important for injured/ill workers who, for example, have lodged a workcover claim and are waiting (endlessly) for approval (liability) of their claim by workcover/agent.
For those who are already on workcover, protection from dismissal when an injured/ill worker is absent on workers compensation is provided by the relevant state or territory workers compensation law. Refer to our resource pages.
It’s illegal to sack someone on temporary leave
Note: the following applies to Victoria – ensure you familiarise yourself with general protections claim, an unfair dismissal, or a discrimination claim in your state if applicable.
Under the Fair Work Act 2009, if an injured/ill worker is temporarily absent from work in order to recover, your boss (employer) generally has no right at all to sack you. An injured/ill worker who is sacked in this situation can lodge a general protections claim (Section 352) with Fair Work Commission.
If and injured/ill worker notifies their boss/employer of their injury or illness correctly, it is unlawful to sack an injured/ill worker who is on extended leave without pay for a period of 3 months or less (or less than a total of 3 months of unpaid leave over a 12 month period if there has been one or more illness or injury requiring a number of periods of time off work).
Also, if a injured worker is on workcover leave, the time spent on that leave also does not count towards the period of absence.
What’s more, if -at the end of a period of temporary absence for illness or injury- workers are unable to do the job they were doing before their injury/illness, their boss/employer has to exhaust a number of alternatives before they can lawfully dismiss them on the basis that they cannot perform what are called “the inherent requirements (*)” of their job. (Also see: Injured workers who cannot perform inherent requirements of the job can be sacked, and Injured workers who can do some but not all inherent job requirements can be sacked)
The Anti-discrimination law furthermore states that an employer/boss must take reasonable steps to help the injured, ill or recovering worker back into employment.
One such an option is to make “reasonable adjustments” in order to help the injured/ill worker continue in their job. What is “reasonable” does however depend on a number of factors including the nature of the disability, the employer’s financial circumstances and workforce size, and the affordability of the alterations.Saying that most employers can and should make reasonable adjustments, for example offering the injured worker reasonable ergonomic tools to do their job. Things include altering a work station/desk, giving the injured worker a different chair, provide dictation software, hands-free phone, under-desk keyboard tray, footstool etc.
Also, according to the Federal Disability Discrimination Act, an employer/boss must make reasonable adjustments to accommodate a worker with a disability unless it would cause the employer “unjustifiable hardship.”
Note: before pursuing your unfair dismissal, please consult with a personal injury lawyer as these cases can interfere with workcover claims, in particular common law claims.
(*) the inherent requirements
What does inherent requirements of a job mean?
Inherent requirements are the essential activities of the job: the core duties that must be carried out in order to fulfill the purpose of a position. They do not refer to all of the requirements of a job, but rather contrast with peripheral or non-essential tasks, which may be negotiable and flexible. Inherent requirements relate to results, or what must be accomplished, rather than means, or how it is accomplished.
The inherent requirements of a job are:
- the fundamental tasks that define a job or category of jobs and that must be carried out in order to get the job done
- not all of the requirements of a job
- about achieving results rather than the means for achieving a result.
Reference: Equal Opportunity in the NSW Public Sector website – www.eeo.nsw.gov.au/
In the Australian Human Rights Commission’s view, inherent requirements need to be determined in the circumstances of each job. Only the inherent requirements of a job should be considered in determining a person’s ability to do the job. They may include the ability to perform the tasks or functions which are a necessary part of the job and to work safely. A person who cannot work safely does not meet the inherent requirements of the job.
Inherent requirements may include:
- the ability to perform the tasks or functions which are a necessary part of the job
- productivity and quality requirements
- the ability to work effectively in the team or other type of work organisation concerned
- the ability to work safely.
Reference: Australian Human Rights Commission website.
If a person with disability can perform the core activities or ‘inherent requirements’ of a job, then that person should have the same opportunity to do the job as anyone else.
Reference: Australian Employer’s Network on Disability’s Manager’s Guide: Disability in the
Workplace (not dated)
For example, a worker might be required to take shorthand but is unable to do so because of a physical disability. In these circumstances, the worker might still be able to get the job done by taking messages on a Dictaphone and then transcribing these messages. Taking shorthand is therefore not an inherent requirement of the job because the job can be done another way. It would, therefore, be unlawful to refuse to give that person the job simply on the grounds of their inability to take shorthand.
Somewhat related posts
- Employer ordered to pay compensation for refusing to employ injured worker
- Modified duties could mean a different contract – lawyers warning
- Workcover case: does impairment equal incapacity
- Unfair dismissal – injured worker’s light duties were part of her contract
- Prior workcover claims and difficulties obtaining a job
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