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Can I fire you? The key legal steps to follow

John Thistleton 13 September 2019
Special Counsel Bill McCarthy

Special Counsel Bill McCarthy. Photo: Supplied.

Running a business means thinking laterally about a number of factors. Providing adequate support for injured workers is a particularly important one.

Employers should be proactive in resolving a worker’s compensation case. Not only is this the right thing to do, but an injured worker can mean that work is not performed, disrupting a business.

BAL Lawyers Special Counsel Bill McCarthy, a specialist in litigation and dispute resolution, personal injury and workers compensation, says even though human resource professionals must balance their sympathy for a worker in such cases with the needs of the employer, a way can be found legally to resolve this issue, including dismissal.

Mr McCarthy says even with a medical certificate, a worker who is unable to perform what is referred to as the ‘inherent requirements’ of their position, can be dismissed provided correct procedures have been taken. This usually involves an independent medical assessment to find out whether the worker has any prospect of a return to work. The medical assessment may also indicate whether the employer could make reasonable adjustments to facilitate the worker’s return to their job such as lighter duties, or another role in their workplace.

At BAL Lawyers HR Breakfast Club on Friday morning, 20 September, Mr McCarthy will set out the complexities of dismissing workers on workers compensation, answer your questions and discuss examples that may have arisen in your workplace.

A common question employers ask is when can they take action?

Mr McCarthy says ACT workers compensation legislation for the private sector is silent on dismissing workers who have a workplace injury “but we know in NSW there is a six-month protected period, so it has been a generally recognised industry standard in the Territory that a six-month protected period would apply here”.

Mr McCarthy, who has acted for clients for 30 years, says overlooking the procedures – including the six-month protected period – to dismiss someone on workers compensation could result in the Fair Work Commission finding the dismissal to be harsh, unjust or unreasonable. The best way to assess a worker’s capacity to return to work is up-to-date medical evidence on their fitness to work.

“The employer is not required to create a new job for an injured worker, but it might mean the employer could reinstate the worker into another position which they have the capacity to perform. If it is a smaller employer, this is unlikely to be the case,” he says.

In cases where an employee returns to work in a light duties role, the employer needs to adhere to job restrictions set by the doctor, otherwise the employer may find a worker sustaining further injury requiring additional time off work with fewer prospects of returning to work in the near term.

Paying out a worker with leave entitlements, long service leave and a redundancy payment could still be found to have been harsh and unreasonable in an unfair dismissal claim. Even outside the scope of workers compensation, where the six-month protection period may not apply, an employer still has to consider if they have a valid reason for dismissal and must follow a procedurally fair process.

Mr McCarthy cites a recent Federal Court case this year involving a worker absent for several months with a medical certificate for work-related stress and depression. The employer sought to verify the doctor’s diagnosis by directing the worker to attend an independent medical assessment. The assessment did not occur. The employer proceeded to terminate the worker months later, doubting the person would ever be able to return to work. The Court found the employer had not established that the worker was unable to perform the inherent requirements of their position. In the absence of the independent medical assessment which may have provided the necessary evidence, the Court ordered the employer to pay $160,000 for dismissing their worker, in breach of discrimination protections afforded to the worker.

Are you an HR professional? Book now to attend BAL Lawyers HR Breakfast Club with Bill McCarthy:

When: 8 am – 9 am, 20 September 2019
Where: Level 9 – Canberra House, 40 Marcus Clarke Street Canberra City

As well as explaining the compliance requirements under ACT Workers Compensation Legislation, Mr McCarthy will speak about the strict compliance requirements when a worker is injured at work, including when, where and why an injury should be recorded.

This is a sponsored article, though all opinions are the author’s own. For more information on paid content, see our sponsored content policy.


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