Employers need to carefully follow termination procedures

unfair-dismissal-injured-worker

The following Fair Work unfair dismissal case  highlights that employers need to be aware of the importance of following process and procedure when dismissing an (injured) employee, even where there is, allegedly, a valid reason for dismissal.  Whilst there may be a valid reason for dismissal -in this case of an injured worker- can still be considered harsh, unjust and unreasonable if proper termination procedures are not followed.

Employers need to carefully follow termination procedures

As we have highlighted countless times, many injured workers are routinely sacked, simply because they were injured. Many employers will go to great lengths to find any possible excuse to sack an injured worker, even the most hard working and most loyal amongst us.

What’s perhaps even more disturbing is that many employers will play “doctor” and actually tell injured workers that they are unfit to perform their duties, even though the injured worker’s treating doctor(s) and specialists may have issued the worker with a certificate of capacity with some easy-to- accommodate restrictions (i.e. accommodated by $200 worth of ergonomic aides in the workplace). Some employers, like the Jewish Hospital in this case, will go to great lengths to terminate an injured worker by alleging they cannot return to their pre-injury employment and as such will base the termination on the inability of the injured worker to undertake the “inherent requirements” of their job, even though the employer may have alternative positions available.

What is most disturbing is the manner in which such terminations are done!

In this case, the injured worker was simply sacked on his first day back from a period of annual leave. How nice!

Countless injured workers -including me- are sacked in harsh, unjust and unreasonable manners, simply discarded like a car wreck, without any due consideration, respect or humanity. You will find that the worst employers are indeed supposed to be ‘caring organisations’ such as hospitals, social / welfare community centres and departments and charities.

Background of the Fair Work Case

Mr O (the injured worker) filed an application for unfair dismissal with the FWC against his employer, the Wolper Jewish Hospital.  He was employed by the Hospital as an Assistant in Nursing. In February 2011, Mr O suffered an unfortunate workplace injury. However, Mr O was on a successful return to work programme, working 8 hours a day for 4 days a week, performing both clerical and ward duties.

However, when Mr O returned from a period of annual leave he was given a termination letter by the Hospital which stated that he would be terminated due to his incapacity to fulfill the ‘inherent requirements’ of the position of Assistant in Nursing – his job.

The termination letter

“Dear Mr O”,

 This is to advise you that following a detailed review of your file we have come to a firm decision that you are unlikely at any time in the near future to be able to fully resume your duties of Assistant in Nursing (“AIN”) because of your incapacity to fulfil the inherent requirements of that role.

You have now been fully supported for over 2 years, substantially engaged in suitable duties roles created to assist you to obtain a return to your pre-injury duties, which regrettably has proven to be unattainable. Suitable duties roles are never intended to be a permanent substitute for your substantive engagement as an AIN.

I note that your first injury occurred on 24 February 2011 and you were unfit for work until 9th April 2011 with suitable duties for 4 hrs per day, three days per week. You appeared to have been making steady progress towards your primary rehabilitation goal until 29 February 2012, when you experienced further injury. You were unfit for any duties until 17th March when you returned to suitable duties for 4 hours per day three days per week. You have slowly progressed to your current status of 8 hours per day, three of which consist of clerical duties, for 4 days per week. There have been a number of occasions when you were absent from duty due to pain in your back.

Current restrictions on your work include a 10 kg lifting limitation, 60 minute sitting limitation, limited squatting and bending, applied since January 2013 suggesting some stabilization of your recovery.

Based on the above, you are consequently unlikely to progress to a stage where you would be capable of carrying out the inherent requirements of your substantive position as an Assistant in Nursing at any time in the near future, if at all.

We have explored the feasibility of offering you permanent alternative work, but are unable to identify any role that may be suitable, having regard to your restrictions and other qualifications.

In view of the foregoing, we believe we are left with no alternative other than to terminate your employment for reason of your incapacity, effective from 21st June 2013. You will be provided with 2 weeks pay in lieu of notice and payment of any accrued statutory entitlements payable to you on termination of your employment.”

The injured worker subsequently applied to the Fair Work Commission (FWC), where he sought reinstatement or compensation for his perceived unfair dismissal.  Interestingly and not surprisingly, Mr O  -like so many injured workers-also claimed that he was bullied and harassed due to his workplace injury.

Decision of the case

The FWC  had to consider whether Mr O’s dismissal was harsh, unjust or unreasonable.

As per the termination letter, the Jewish Hospital stated that the medical evidence was such that a return of Mr O to pre-injury duties was not possible and in turn, “there was nothing that injured Mr O could do to change the reason for his dismissal”. Let’s not even go to the alleged Jewish Hospital’s “exploration of the feasibility of offering Mr O permanent alternative work”…. [helloo, being well familiar with hospital settings I know that there are always suitable vacancies!]

So the FWC started with the consideration whether there was, indeed, a valid reason for the dismissal.  In doing so, the FWC  had pertaining to whether there was a ‘fair go all round’ and accordingly, found that there was a valid reason for dismissal which is bsically Mr O’s inability to undertake the inherent requirements of his job.

The FWC then considered whether the dismissal was harsh, unjust or unreasonable.

The FWC did find that in providing Mr O his letter of termination on the day he returned back from leave resulted in him not being adequately notified of the reason for his dismissal and not being given an opportunity to respond.
Furthermore, the FWC found that the Jewish Hospital did not sufficiently take into account the impact of the dismissal on Mr O, his length of service to the Hospital, his performance and conduct at work, and alternative work options available for him.

The FWC ordered compensation of 10 weeks pay, as a reinstatement was not possible, for obvious reasons.

You can read the full text of the case here: Solomon Ocampo v Wolper Jewish Hospital [2014] FWC 260

 

We are really sick and tired of being told we (injured workers) are malingerers and out for a “free holiday”, too lazy to return to work – whereas the main problem actually lies with our employers who, most often than not, chose to discard us on the trash heap. As many injured workers know, it is very difficult to find alternative employment once you have filed a workers compensation claim… A massive cultural change is needed, where a little respect and humanity would go a long way!

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[Post dictated by WCV and manually transcribed on behalf of WCV]

 



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One Response to “Employers need to carefully follow termination procedures”

  1. He was lucky to get a letter, in my case I got nothing in addition Fair Work Ombudsman (why the hell it’s called fair?) refused to give me any help, my only chance is going to Court!

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    Xchangingvictim March 10, 2014 at 10:14 pm