Tuesday, 24 May 2016

Thinking about terminating a long-term injured worker’s employment? Be careful before you do

The Decision

The decision of Butterworths v Independence Australia Services concerned an employee, Ms Butterworth, who had worked as a Customer Services Officer at Independence Australia Services (IAS) from 2007 to 2013. The employee suffered from fibromyalgia, chronic fatigue syndrome, a neck and shoulder injury and anxiety and depression, which required her to be returned to her previous administrative duties and minimise keyboard duties from late 2011.

In April 2013, after the 52 weeks ’employment obligation period’ under the Workers Compensation legislation was over (during which an employer is required to attempt to rehabilitate the employee into his or her pre-injury position, and to ‘keep the position open’), IAS decided to terminate Ms Butterworth’s employment, based on her ongoing and indefinite inability to perform her role.

The employee then commenced proceedings in the Victorian Civil and Administrative Tribunal (the Tribunal), claiming that IAS had unlawfully discriminated against her contrary to Equal Opportunity legislation, by failing to make reasonable adjustments to accommodate her disabilities and terminating her employment.

After considering the issues, the Tribunal found that IAS had failed to make reasonable adjustments as required by law, and discriminated against her by terminating her employment. In coming to that conclusion, the Tribunal found that IAS in fact had the ability to redeploy the employee to a role which required less telephone based duties. It was also held that redeploying her to that role would have had no financial impact on IAS, and would have caused no detriment to the employee.

The Tribunal awarded Ms Butterworth $3,325.50 for economic loss (as she had secured alternative employment relatively quickly), and $10,000 for hurt, distress and humiliation.

Implications for Employers

The case serves as a reminder of the duties that businesses must meet before terminating an employee with an injury or disability.

Even though some duties may cease to apply (such as under the Workers’ Compensation legislation), this does not mean that other obligations are not required – such as those contained in the anti-discrimination legislation, or (and although they were not raised in this case) the unfair dismissal procedures in the Fair Work Act.

Complying with one ‘set’ of obligations does not mean that a business will be seen as having successfully complied with the others.

If you have employees with injuries or disabilities and are considering whether to terminate their employment, contact us to discuss what steps, if any, you may have to take to make reasonable adjustments to accommodate their condition, and how to raise your concerns with the employee.


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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