If procedures in relation to a dismissal are not properly managed, and shows a degree of procedural unfairness, Fair Work can order an employer to compensate the sacked (injured) worker even if the dismissal itself was actually justified.
Injured and recovering workers who fail to supply medical information requested by their employers about their ability to perform their job can be sacked. Two separate and fairly recent legal cases highlight that injured workers have to allow their employer(s) to obtain medical information from their treating doctor(s), if they request so.
One of the most frustrating things about workplace injuries is that injured workers’ employers’ interests (and those of the insurer of course) are very often at odds with the injured worker’s interests. A common example, your employer would like you to return to work as soon as possible. If you’re injured, it’s in your best interest to wait until you are healed and physically (or mentally) ready to handle your job demands. Or else, you could get injured again or never make a full recovery.
The following Fair Work Commission legal decision has ruled that employers are allowed to seek further clarification where medical clearances provided by (injured) workers are general in nature, or where there are genuine concerns that there is a risk to health and safety if the (injured) worker returns to work. In other words, employers can send you to attend a medical assessment, even with a company doctor!
Did you know that in NSW an injured worker who has been terminated because of his injury can seek reinstatement when the (injured) worker becomes fit for employment (even with some restrictions) within 2 years of the termination.
With the increasing prevalence of smart phones and other electronic devices, more and more conversations in the workplace and, for example, medical examinations are being recorded, often secretly and/or unauthorised. However, recent decisions of the Fair Work Commission suggests that using secret recording devices in the workplace may be a pointless exercise.
In this disturbing Fair Work legal case, an employer (Newland Food Company Pty Ltd ) unfairly sacked an injured worker, because they were of the (sick!) opinion that the injured worker was a workcover claim “predator” who was presumed to deliberately injure himself! Fair Work awarded compensation to the injured worker.
As we have highlighted in our previous article, managing work-related injuries can be a delicate exercise, with multiple – and sometimes conflicting – issues. For example, what if the worker has a right to return to work (as set out in a contract of employment) but the employer is concerned they’re still not fit and their return could breach work health and safety laws?
If an employer is relying on a medical assessment of a worker’s capacity to work, they must ensure that the medical advice is current, and that the distinction between current capacity and future capacity is understood and explored with the medical treater(s).
A few weeks ago, a hefty discussion took place in response to some comments made by ‘@Help Me’, a worker who unfortunately (allegedly) suffered a psychological injury as a consequence of her employment being terminated after she had to take prolonged time off to care for her terminally ill husband. In injured worker ‘Jo’s’ response to ‘Help Me’ s/he stated the essence of this article: the simple fact is your employment was terminated because you were taking too much time off work ….”. In a nutshell, employers may have a valid reason to dismiss / terminate a worker on long term sick leave.