Managing long-term illness or injury in the workplace is one of the most challenging responsibilities for any Australian business owner or HR professional.
Balancing the genuine needs of an unwell employee with the operational requirements of your organisation requires a high degree of empathy, but it also requires a firm understanding of the law.
The Case
In a recent matter before the Fair Work Commission, a WorkSafe inspector with 26 years of tenure was dismissed in July 2023. The employee had been diagnosed with Post-Traumatic Stress Disorder (PTSD), and his employer argued that he could no longer perform the “inherent requirements” of his role.
The employee challenged the dismissal, claiming it was unfair. He argued that the organisation had failed to provide the necessary early intervention or rehabilitation programs that might have facilitated a successful return to work.
The Ruling
Commissioner Emma Thornton ruled that the dismissal was not unfair. The decision rested heavily on the medical evidence provided, which was “guarded” regarding the employee’s ability to ever regain his capacity for work.
The Commission found that due to the “likely permanence” of the incapacity, the employer was not legally required to exhaust all avenues of redeployment or rehabilitation before moving to termination. Commissioner Thornton noted that an employer cannot be expected to leave a position unperformed indefinitely when there is no foreseeable return to duty.
How to do it better
While the employer’s decision was upheld in this instance, these cases are rarely simple. To manage these situations with both compassion and legal rigour, consider the following:
- Prioritise Clear Medical Evidence: Do not rely on internal assumptions. Base your decisions on contemporary, specialist medical reports that specifically address the employee’s ability to perform the inherent requirements of their role.
- Maintain Procedural Fairness: Even when a return to work seems unlikely, ensure the employee is consulted throughout the process. They should have the opportunity to respond to the medical evidence before a final decision is made.
- Document Support Efforts: While the Commission ruled that rehabilitation wasn’t mandatory here due to the permanence of the condition, documenting the support you have offered demonstrates that your organisation has acted reasonably and in good faith.
The Bloom Takeaway
This ruling serves as a vital reminder that while the Fair Work Act provides significant protections for employees, it also recognises the commercial and operational realities of running a business. When a medical condition prevents an employee from performing their core duties for the long term, and no reasonable adjustments can change that reality, an organisation has the right to protect its operational integrity. Fairness must apply to both the individual and the sustainability of the workplace.