Managing Ill & Injured Workers

Written by Christopher Lowe, Legal and Workforce Team

Councils have obligations under work health and safety legislation to ensure, so far as is reasonably practicable, the health and safety of their workers.  

Councils must comply with various legal obligations when managing an employee’s absence and return to work and may be required to make reasonable adjustments to accommodate an employee’s medical condition.

Further, there are different legal obligations and requirements for managing employees with work related and non-work related injuries and illnesses.

We frequently receive queries from Councils about managing long term absences, including considering whether it is appropriate to dismiss an employee who may not be fit to return to the workplace.

Situations often arise where an employee’s General Practitioner (GP) fails to provide sufficient information about the employee’s illness, which can make it difficult to assess whether any reasonable adjustments need to be made or how the employee’s illness or injury may impact their work capacity.

As an employer, Councils will generally be entitled to seek further information about the nature of the employee’s illness/injury and its expected duration to the extent that it is relevant to the employee’s work capacity and management of their return to work.

Generally, employees who are on paid sick leave under the Queensland Employment Standards are protected from dismissal, regardless of the length of time they have been absent from work due to illness/injury.

However, if an employee has been absent on sick leave for an extended period, Council may be able to consider dismissal on the basis of incapacity, being that they are no longer fit to carry out the inherent requirements of their role and that no reasonable adjustments can be made.  

In considering dismissal, Councils need to always be mindful that it is unlawful to dismiss an employee because the employee is temporarily absent from work because of a prescribed illness or injury, being an absence from work on unpaid sick leave for a period of up to 3 months.

However, it is a common misconception that Council may automatically terminate the employment of an employee immediately after the 3 month absence period has elapsed.

If the employee has exhausted paid sick leave entitlements, Council must consider:

• Whether the employee may be fit to return to work and when;
• Whether the employee will be fit to return to the normal position or whether some modifications (reasonable adjustments) are required and for how long;
• The length of employment with the Council; and
• The size of the Council and its ability to accommodate a lengthy absence from work.

If Councils are considering dismissal on the basis of incapacity, it is recommended that as a first step, written consent of the employee should be sought to contact the employee’s treating doctor to obtain more information about their illness/injury. Any medical information obtained should be kept confidential and it should be provided to the employee for an opportunity to comment.

If the treating doctor is unable to make a final decision in relation to the employee’s ability to perform the inherent requirements of their role, or if a Council is wanting an independent medical assessment conducted, Council may consider arranging an independent medical examination (IME) to obtain a medical report in regard to the employee’s work capacity. Any medical report obtained should be kept confidential and given to the employee for a response. Any IME should be at the cost of Council.

If an employee refuses to attend an IME, this may be considered a failure to comply with a lawful and reasonable direction, which may warrant disciplinary action, including dismissal. However, caution should always be taken when considering the dismissal of an employee with an injury/illness.

Councils should be mindful that there are additional legal obligations if an employee is absent from work due to a work-related injury/illness. For example, an employee cannot be dismissed within 12 months of sustaining a compensable work-related injury/illness. However, upon the expiry of the 12 month period, Council may then seek to assess whether the employee is fit to return to work or whether to dismiss on the basis of incapacity.

Whenever considering dismissal on the basis of incapacity, medical evidence should always be obtained and employees should always be afforded natural justice and procedural fairness, including providing the employee with notice that Council is considering terminating their employment on the basis that they are no longer fit for the inherent requirements of their role, and the employee should always be given the opportunity to respond prior to a final decision of termination being made.

For further guidance and assistance on Councils’ obligations in managing ill and injured workers, please contact us by calling (07) 3000 2148 or alternatively send us an email at peaklegal@wearepeak.com.au.