Human resource management is critical when managing sick or injured employees as it is fraught with numerous legal risks.
To reduce the legal risk to business, employers need to take a proactive approach to the management of an employee’s illness or injury at each stage of their employment.
Most employees in Australia are entitled to 10 days personal leave per year. Although it is a workplace right to utilise such leave, there are undoubtedly situations where employers question the legitimacy of the taking of such leave.
In certain circumstances, employers have an implied right to direct an employee to undergo a medical examination. However, there must be a genuine need for the employer to require the employee to undergo such an examination. A genuine need includes circumstances where there is limited information about the employee’s illness or injury or where there are frequent and lengthy unexplained absences from work.
If an employee refuses to consent to an employer’s direction to undergo a medical direction, this will become a disciplinary issue for the employer.
Re-introducing injured employee to workplace
Where an injured employee is requesting to return to the workplace, The Fair Work Act 2009 (Cth) entitles employees to request a change in their working arrangements to accommodate their “disability”. An employer can reject an employee’s request, but it must be on the basis of strict criteria.
Where an employee’s illness or injury prevents them from conducting the inherent requirements of their job, an employer must make a reasonable effort to accommodate them in the workplace.
Generally, it is unlawful to dismiss a person for being absent from work if the absence is less than 3 months because of a personal injury or illness. However, strict rules apply to this. If you are uncertain, always seek legal advice.
If an employer unlawfully deals with an ill or injured employee, they can open themselves up to a myriad of legal issues, including unfair dismissal, general protection claims, discrimination and more.
The rules surrounding termination are risky. It is crucial that you consider your obligations under the relevant laws and proceed with caution before making any decisions regarding employment.
If you require any further information or assistance with dealing with managing an ill or injured worker, then please contact Jessika Reghenzani from WGC Lawyers. We would be happy to assist you.