Management of Ill and Injured Employee – Personal Injury

The management of an ill and or injured worker can be a difficult and complex task. and is rarely a quick, simple or easy process. An illness or injury has the potential to trigger a number of issues under state and federal legislation such as the Discrimination Act 1991 (ACT) and Fair Work Act 2009 (Cth), adding another level of complexity to such matters.

In the event an employee injures themselves at work this will likely be claimable through your workers compensation insurance, however what happens if your employee injures themselves outside of work? Or the employee has been absent for some time and has presented a medical certificate which simply states they are suffering from a ‘medical condition’?

This can often leave employer questioning what are the employee’s entitlements, what the employer’s obligations are, and what further information can the employer legally ask for?

Employee entitlements

While ever an employee is unfit for work due to a personal illness or injury, the employee is entitled to access personal/carer’s leave. Under the National Employment Standards (NES), permanent employees accrue up to 10 days paid personal leave for each year of service.  Where an employee’s absence exceeds their paid entitlement, they may be eligible to apply for unpaid leave. Personal/carer’s leave entitlements may differ where an enterprise agreement or other such industrial instrument is in effect.

To access paid entitlements an employee may be required or requested by the employer to provide evidence, that would satisfy a reasonable person that the leave has been taken due to the employee suffering from a personal illness or injury. In the event this is not provided or the employee refuses to provide such evidence, may result in the leave being unpaid. Evidence requirements may differ from the above where an enterprise agreement or other such industrial instrument is in effect.

Employer obligations

Under relevant workplace health and safety and workers compensation laws, an employer owes a duty of care towards all employees, to take all reasonable steps in ensuring their health, safety and wellbeing. In addition, where an employee has a preexisting illness or injury, additional precautions may need to be taken to ensure that the employee’s health, safety and wellbeing is not at an increased risk due to their pre-existing condition or injury. An aggravation or exacerbation of a non-work-related injury or illness may be compensable under current workers compensation legislation.

Therefore, it may be necessary to request further information, regarding the employee’s illness or injury to enable the employer to accommodate the employees safe return to work and to enable the employer to fulfil its work and health safety obligations.

What information can the employer ask for?

If the employer wishes to request further information from an employee, regarding their illness or injury, or wishes to direct the employee to undergo a medical assessment, the request and or direction, to do so, must be reasonable.

To determine what would be considered reasonable, we can refer to Cole v PQ Australia Pty Ltd [2016] FWC 1166. It was in this case that the Fair Work Commission provided the following outline as to what it would consider reasonable when requesting an employee to attend a medical assessment –

• Is there a genuine indication of the need for the assessment or examination (e.g. prolonged absences without explanation or an illness related to the employee capacity to perform the inherent requirements of the job)
• Has the employee provided sufficient medical evidence which explains absences and has been able to demonstrate fitness to perform duties?
• Is the industry or workplace particularly dangerous of risky?
• Are there legitimate concerns that the employee’s illness could impact on others in the workplace?
• Is the medical assessment truly aimed at determining, independently whether the employee is fit for work?

In some cases, it may be that the employer wishes to request additional information where a medical certificate or the evidence is in vague or general terms. This may be appropriate to determine

• the nature of the illness or injury
• how or why the illness or injury affects the employee’s capacity to work
• anticipated recovery time; and
• when or how the employee might be able to perform partial duties.

However, before an employer can request any information from the employees treating medical practitioner, the employer must gain written consent from the employee beforehand.

Where questions are to be posed to an employees treating medical or an independent medical assessor (once consent has been granted), it would be advisable to set out in detail the specific information the employer is requiring. This may include information around

• whether the employee is fit enough to perform each of the inherent requirements of the job
• what modification would assist the employee’s safe return to work
• duration of absences
• duration of any reduced capacity to perform the inherent requirements of the job; and
• any specific health and safety risks that the employee should be taking into account to address safety risks that may present if the employee works while ill or injured.

Termination of a genuinely ill or injured employee should be the last resort as it can lead and often does lead to claims of unfair dismissal, unlawful termination, discrimination, and adverse action under general protections legislation.

Before any member begins down this path, it would be recommended to seek advice from the MBA Workplace Relations and Legal team to discuss the matter and the appropriate course of action.