Workplace Injury? – written by Nicole Doyle, Associate.
Managing an injured employee can be challenging. Even if an employee’s sickness or e workplace injury is non-work related, there are still many protections for employees that must be considered by an employer. In particular, injured employees are protected by:
- The Disability Discrimination Act 1992;
- The Fair Work Act 2009;
- The Workers Compensation and Rehabilitation Act 2002;
- Their employment contracts; and
- HR policies.
As its name suggests, the Disability Discrimination Act makes it unlawful for an employer to terminate the employment of an existing employee who develops a disability unless the employee cannot reasonably perform the inherent requirements of their job. An employer must consider whether the employee could perform the requirements of the job with “reasonable adjustments” and if so, must implement such adjustments as soon as reasonably practicable.
The Fair Work Act prevents an employer from terminating the employment of an employee who is temporarily absent from work provided the employee produces medical evidence. Only in the event that an employee’s sick leave is exhausted and they are absent from work without pay for 3 months (or 3 months aggregate over a 12 months period) can their employment can be terminated.
The Workers Compensation and Rehabilitation Act 2002 adds a further lawyer of protection for injured employees by requiring that an employee’s job be held open for a specified period of time after their injury (unless it creates an unjustifiable hardship on the employer).
The leading case on the dismissal of an injured employee is Nikolich v Goldman Sachs JB Were Services Pty United  FCA 784. Mr Nikolich developed stress following a disagreement with his supervisor. In July 2003 he lodged a formal complaint with HR. The HR department did not thoroughly investigate Mr Nikolich’s claims and his complaints were dismissed. Mr Nikolich’s stress and mental health subsequently worsened and he was absent from work from December 2003 to December 2004 and supplied medical evidence confirming he was suffering from a psychiatric illness as a consequence of his employment. On 6 December 2004 Goldman Sachs terminated Mr Nikolich’s employment.
Mr Nikolich was unsuccessful in a claim pursuant to the Fair Work Act for unlawful termination of his employment due to his temporary absence of work. This was because the absence was greater than 3 months. However, Mr Nikolich was successful in Federal Court proceedings against Goldman Sachs for breaching his employment contract by failing to thoroughly investigate his complaint. The Court held Goldman Sachs had failed to comply with its own HR Policy and awarded Mr Nikolich $515,869 in damages on account of the psychiatric injury he sustained as a consequence.
We recommend employers seek legal advice on managing long term injured employees in their workplace including their right to challenge medical evidence and require employees to undergo medical examinations. Employers should especially seek legal advice before dismissing an injured employee.
We also recommend employers regularly review their employment contracts and HR policies to minimise the risk of breach of contract claims.
Miller Sockhill Lawyers can assist employers to understand their obligations, draft contracts and policies and provide guidance through a termination of employment process.