Recognising the Health Benefits of Good Work

In most cases where an employee is sick or injured, it is a simple matter of the affected employee taking personal leave until he/she is cleared to return to work by the doctor. In circumstances where an employee has suffered a more serious illness or injury outside the workplace, however, there is a lack of statutory framework aimed at assisting employers to graduate the employee back into the workplace.

Injuries/illness to employees give rise to issues “absenteeism” and “presenteeism” and creates a significant productivity cost for employers as well as a personal cost for those employees who are injured or ill. Unlike absenteeism, presenteeism is not always clear and it is often very challenging for employers to know when and understand how an injury or illness limits the performance of their employees.

Long-term work absence is harmful to the physical and mental health of employees. Research shows that if an employee is off work on account of injury or illness for:

• 20 days the likelihood of a successful return to work is 70%;
• 45 days the likelihood is 50%; and
• 70 days the likelihood is 35%.^[1]

In our experience employers are generally acutely aware of the risk of returning an employee who is injured or ill back into a workplace environment which has potential to aggravate, accelerate or exacerbate an underlying and non-compensable injury or illness, opening the door for a claim for a work-related injury.

For employers seeking to effectively manage injured employees in the workplace and boost productivity, recent cases have illustrated tools that employers can use to manage injured employees back into the workplace.

Communication

In Laviano v Fair Work Ombudsman [2017] FCCA 197 Mr Laviano filed a general protections claim against his former employer, the Fair Work Ombudsman (“the FWO”) following the termination of his employment for failing to attend a medical assessment and refusing to communicate with his employer during a protracted period of sick leave.

Mr Laviano was absent from work between 24 March 2014 to 21 September 2014, and 7 October 2014 to 22 December 2014, returned to work on 23 December 2014 but was then absent from work on 24 December 2014. His absence, for the most part, was due to a psychological condition.

The FWO requested that Mr Laviano attend a medical examination on six separate occasions between 22 July 2014 and 27 November 2014 for the purposes of understanding the nature of his condition so as to assist him to return to work. Mr Laviano did not attend any of the scheduled assessments, save for one where he attended late and the assessment could not proceed.

Mr Laviano asserted that between 7 October 2014 and 22 December 2014 he could not work, could not attend to any compensation-related matters and could not communicate with the Respondent due to what he described as his disability.

On or about 14 October 2014, Mr Laviano’s treating psychologist advised him not to make contact with or open any mail from his employer. Mr Laviano took no steps, either directly or via a third party, to notify the FWO that he would not, in effect, be communicating with them or the reason as to why.

In his evidence, Mr Laviano said it was because of this advice that he did not know about the medical assessment scheduled on 27 November 2014 until his return to work for the day on 23 December 2014.

On 9 January 2015, the FWO terminated Mr Laviano’s employment pursuant to section 29 of the Public Service Act 1999 (Cth) for the non-performance of his duties as a consequence of him not attending a medical appointment scheduled on 27 November 2014.

His Honour Judge Altobelli found “it was unreasonable, in all the circumstances, for the Applicant to simply, and in effect, ‘shut down’ all communication between the Respondent and himself given the circumstances and the history of his relationship with the Respondent, and then use his self-imposed ignorance not even as a shield but as a sword, in the present proceedings.”

Seeking Medical Information

In a previous article, we discussed the implications of the decision in Australian & International Pilots’ Association v Qantas Airways Ltd [2014] FCA, which reinforced an employer’s rights to seek medical information to satisfy work health and safety obligations.

In circumstances where an employer is seeking to return an injured, or ill, employee back into the workplace, it is appropriate to request the employee submit to an independent medical examination where there is a reasonable concern about the ability of the employee to undertake work duties in a way that does not represent a risk to the health and safety of the employee, and the employee’s colleagues.

 Requiring Employees to Perform Work

An employee is contracted to perform the work stipulated in the employment contract.  Provided an employer makes a reasonable direction that an injured worker perform duties that are within the scope of the contractual relationship between the employer and the employee, it will be a breach of the employment contract for the employee to refuse.

Whether a direction to perform work is reasonable will depend on the particular circumstances in which the direction is made.  Some of the factors an employer will need to consider are:

• whether the duties are within the scope of the employment contract?
• can the duties be performed safely?
• do arrangements need to be made for the employee to get to/from the workplace?
• has the employee been provided with reasonable notice of the requirement to attend the workplace and perform duties?

Employers should also ensure that all parties are clear about the nature of the duties and the duration for which they will be provided. It is not always possible to accurately predict the rate at which an injured employee may recover and employers need to make sure that they manage expectations as to how long alternative duties may be offered from a legal risk perspective, but also to properly manage the injured employee.

What Happens When an Injured Employee is Unable to Make a Sustained Return to Work?

We have previously discussed the issues that employers need to consider before making a decision to dismiss an employee who has been unable to return to the workplace.

As stated above, employers should be clear about:

• the nature of any alternative duties that can be offered; and
• the duration for which those duties will be offered.

If an employee is not able to make a sustained return to the workplace, an employer is not under an obligation to create a new position and the employer will need to consider redeployment or dismissal.

Conclusion

There are very good financial reasons to keep employees who are injured or ill engaged and productive in the workplace. In order to do so effectively, employers need to be mindful of the work health and safety obligations applicable in their jurisdiction to ensure they provide an injured or ill employee with a safe workplace environment.

Although employers may not be able to avail themselves of the statutory rights and obligations that a Workers’ Compensation scheme provides when employees are injured in non-compensable circumstances, they should be aware that similar rights exist at common law that can be used to assist with returning injured employees back into work.

We suggest that employers:

• ensure that employees use their personal leave entitlements appropriately;
• communicate with their employees to maintain a connection with the workplace and to understand the nature of any injury or illness that may be affecting their ability to perform work;
• in circumstances where an employee takes a significant period of leave, or constant repeated periods of leave, request that they be provided with all the appropriate information concerning the injury or illness so as to ensure that the employee makes a safe return to the workplace and is undertaking work for which he or she is fit and able to safely perform;
• if there is a reasonable apprehension of risk to the health and safety of the injured employee, direct that an employee submit to a medical examination for the purposes of ascertaining the nature of the injury/illness, the expected duration of the injury/illness, and what duties the employee is capable of performing in a safe manner; and
• consider implementing a rehabilitation and return to work plan in consultation with a return to work expert.

If you have any questions or concerns with respect to employers’ rights in the workplace, consult your legal counsel.