If an employee is injured at work, as an employer, you have an obligation to provide suitable employment directed at facilitating the employee’s rehabilitation. However, this obligation has limitations.
Managing long-term injured workers is challenging, potentially time consuming and impacts both management and co-workers who may need to “pick up the slack” in the employee’s absence. These issues can be compounded where there is uncertainty as to when the employee will resume their full duties – or if they will at all.
Managing Injured Workers Process
In a recent case, an employer provided an injured bus driver with a year and a half of support after he developed a spinal injury and became prone to panic attacks in the course of his employment. The employer modified his duties to comply with the requirement that he not drive a bus continually for more than an hour.
It eventually became apparent that the employee’s condition would not improve. This forced the employer to make a decision regarding the employee’s ongoing employment. Ultimately, the employer decided to terminate his employment on the basis that he could no longer perform the inherent requirements of the role.
Consequently, the bus driver brought an unfair dismissal claim, alleging that he was at financial disadvantage due to how his claim was managed, he felt unsupported by the employer and that he hadn’t been given a chance to rehabilitate.
In the decision, the Commission found that the employer had taken substantial and comprehensive steps to support the bus driver to recover. Therefore, the employer was not required to hold the employee’s role open indefinitely when it became apparent that that his rehabilitation was unsuccessful.
The Commission accepted that the claims process had been stressful for the employee and his family. However, this was a common experience when dealing with workers’ compensation claims and did not render his dismissal harsh, unjust or unreasonable.
Lessons for Employers: Obligations to Injured Workers
There are many protections for long-term injured workers, including under the Fair Work Act anti-discrimination legislation and workers’ compensation legislation. As an employer, you must be aware of these protections in determining how to manage long term injured workers.
The degree of protection will depend on:
- Whether it is a work-related injury,
- The capacity of the business to provide suitable duties and/or reasonable adjustments; and
- The worker’s prognosis.
The Courts and Tribunals will recognise that an employer cannot keep an employee’s position open indefinitely. This decision clarifies that they will support an employer’s decision to terminate provided the employer acts based on current medical evidence regarding the employee’s capacity for work and their capacity in the foreseeable future.