Can I performance manage an injured or ill worker who is underperforming?
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The short answer is yes provided that the employer complies with the relevant legal requirements and, if any, the relevant workplace procedures. The management of one’s performance is often not a quick, simple or easy process. Where there is an illness or injury, the process may become more difficult and complex. Although the performance management of an injured or ill worker shouldn’t be different from managing a not injured or ill worker, the employer should take into account the medical conditions and their effect on the employee in the performance management process. The employer can request further information from an employee, regarding their illness or injury, or direct the employee to undergo a medical assessment in certain circumstances. However, such a request or direction must be reasonable. The employer needs to understand their obligations as well as their employee’s entitlements where there is an illness or injury. If the process is not handled properly, the employer can potentially face a claim (e.g. general protection or unfair dismissal) made by the employee.
Employee entitlements and protections
While an employee is unfit for work due to a personal illness or injury, under the National Employee Standards (NES), the employee is entitled to access 10 days of paid personal leave per annum if they are a permanent employee. Where an employee’s absence exceeds their paid entitlement, they may be eligible to apply for unpaid leave. If the employee is covered by a modern award or enterprise agreement, they will be entitled to what is in the award/enterprise agreement.
The Fair Work legislation prohibits an employer from dismissing an employee because the employee was temporarily absent from work due to an illness or injury. Temporary absence is defined as:
- an absence that is not more than 3 consecutive months, or the total absences within 12 months is not more than 3 months; and
- the employee is not on paid personal leave/carer’s leave for the duration of the absence(s).
If you need assistance with any employment issues, please reach out to our Workplace Relations and Legal Team on (02) 6175 5900.
