Unlawful to dismiss an employee temporarily absent due to illness or injury

Unlawful to dismiss an employee temporarily absent due to illness or injury

Unlawful to dismiss an employee temporarily absent due to illness or injury

Sections 352 and 772 of the Fair Work Act 2009 (the Act) expressly prohibit an employer from terminating an employee temporarily absent from work due to an illness or injury, with the regulations providing that an employee must not be dismissed within three months of unpaid leave because an employee has a temporary illness or injury. Breaches of these provisions are likely to result in the decision to terminate being deemed unfair by the Fair Work Commission.

A recent case before Commissioner Jennifer Hunt dealt with a male employee of Amcor Flexibles (Australia) Pty Ltd (Amcor) who had commenced employment with the company on 5 May 2009 until his dismissal, effective 22 February 2021. At the time of his dismissal, he had been employed as an Extrusion Operator at the company’s Acacia Ridge site in Brisbane.

The employee had suffered a workplace injury in early September 2019, for which WorkCover accepted liability. He was placed on a suitable duties plan effective from 17 September 2019 to accommodate his injury, which enabled him to operate machinery, but he was unable to perform key tasks, including manually moving small rolls, operating a forklift, or climbing stairs.

On 22 September 2020, both Amcor and the employee were notified of a determination by WorkCover that the employee’s ongoing incapacity was no longer the result of his employment but rather due to a pre-existing ailment. The following day, Amcor advised him that he would require a full clearance before returning to work, and in the event that he provided a clearance, he would also be required to undertake an independent medical examination (IME). He remained on paid leave until 26 January 2021.

On 26 November 2020, he wrote to his employer requesting they consider either redeploying him to another role or modifying his duties to accommodate his injury. Amcor responded on 2 December 2020, advising that they could not offer him an alternate role, reduce his hours, or modify his duties.

On 13 January 2021, Amcor again wrote to him advising that as he was unable to carry out the inherent responsibilities of his role, they intended to terminate him with an effective date of 22 February 2021. Ultimately, his employment was terminated.

As Commissioner Hunt noted, the employee had only been absent on unpaid leave for four weeks when the dismissal took effect. As the Commissioner noted,

“The Respondent was required by law not to dismiss (him) due to his absence from work because of his injury, within three months of his unpaid leave commencing. (He) was a protected employee, and it was incumbent on the Respondent to permit (him) time to see if he could recover from his injury…A prudent employer would regularly be in touch with such an employee, and as the period of three months of unpaid leave draws near, invite the employee in for a discussion to advise that the Respondent was considering dismissing him once the period of unpaid leave had gone beyond three months”.

In determining that the dismissal was harsh, unjust and unreasonable, Commissioner Hunt was required to consider the employee’s request to be reinstated to Amcor to his previous role or an alternate role.

However, she determined that returning him to the workplace would be inappropriate due to his medical incapacity. Doing so would place an ongoing and unacceptable risk on the company.

She determined that he was entitled to eight weeks’ pay, based on a nominal sum of $1344.32 per week.

MP v Amcor Flexibles (Australia) Pty Ltd [2021] FWC 6125 (14 October 2021)

For questions about absences due to injury or illness, WorkCover, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 405.1123

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