By Andrew Emerson, Employee Relations Advice Centre 

If your employee sustains an injury outside while playing weekend sport, it doesn’t give you a green light to terminate their employment if they can’t perform their usual role. 

Regardless of where an injury occurs, employers have an obligation to support and accommodate their employees’ safe return to work. 

Under s352 and s772 (1)(a) of the Fair Work Act 2009 (Cth) (the FW Act), an employee is protected from termination of their employment as a result of a temporary absence from work due to illness or injury.

A temporary absence is defined as an illness or injury where a medical certificate or statutory declaration is provided within a reasonable time and, the absence of the employee within a 12-month period doesn’t exceed three months. 

An employee is no longer considered to be on a temporary absence once the three-month period has expired and all paid personal leave entitlements have been exhausted. 

Employers should avoid terminating employees prematurely to prevent lengthy and costly adverse action claims, with damages being uncapped.

I’ve waited out the temporary absence, what now?

In certain circumstances, it may not be feasible for the employer to accommodate the employee past the expiry of the temporary absence. 

An employer may be able to terminate the employee if they can prove the employee is unable to perform the inherent requirements of their role. 

Employers must also be able to show that the continued employment or alterations required for the employee to continue employment pose unjustifiable hardship on the employer. 

Employers should ask for additional medical information pertaining to the injury or illness and discuss with the employee to determine the best course of action for a safe return to work. 

It’s important to determine whether the employee will be able to perform the inherent requirements of the role in the foreseeable future without posing unjustifiable hardship on the employer. 

However, unless there is explicit instruction in any relevant industrial instrument, before requesting additional information or an independent examination, employers should consider if the request is lawful and reasonable. 

Ask for further information

Swanson v Monash Health [2018] FCCA 538 shows an employer can lawfully and reasonably request an employee to attend an independent medical examination to help determine if the employee can perform the inherent requirements of their position after a period of restricted duties or where the employee is fully unfit. 

The employee should be made aware that if they refuse to comply with a lawful and reasonable request for additional information from the employer, they may be subject to disciplinary action up to and including termination. 

Things to remember

  • Keep the employee informed of their position and your intentions.
  • Discuss and work with the employee regarding a return to work plan that accommodates any restricted duties.  
  • Ensure that in any instance where the employee is returning to work you do not expose them to reasonably foreseeable risks that may exacerbate their injury.
  • Ensure that if you require addition medical information or an independent medical review, such a request is lawful, reasonable and that you are doing so to determine the employee’s ability to perform the inherent requirements of the position. The assessment may also inform whether any reasonable adjustments will need to be made to facilitate the employee’s capacity to perform their role.
  • Do not jump to conclusions of the employee’s ability to perform the inherent requirements of the role. Rely on medical evidence and react accordingly. 
  • Keep records of any conversation regarding the employee’s injury or illness and return to work.

For further information on temporary absence contact the CCIWA Employee Relations Advice Centre on (08) 9365 7660 or email advice@cciwa.com. For queries on return to work contact the CCIWA Safety and Risk team on (08) 9365 7415 or email osh@cciwa.com.