Long-term absence = no longer fit for work?

Being away from work for very long periods may seem a plain scenario for termination, but the law is not so straightforward. By PETER VITALE

By Peter Vitale

Being away from work for very long periods may seem a plain scenario for termination, but the law is not so straightforward.

Employers are often confronted with a dilemma in dealing fairly with employees who have been absent from work for lengthy periods of time because of illness or injury. Employer’s need to understand the pitfalls in trying to balance the needs of the business against their legal obligations to employees.

One recent case shows that terminating the employee’s employment is a decision that requires the utmost care and careful consideration.

In Duma v Mader International, the Victorian Civil and Administrative Tribunal decided that the employer had unlawfully discriminated against the employee after it terminated his employment following a long absence from work. The absences were as a result of injuries and illnesses for which the employee made workers compensation claims.

These claims were rejected, and for the purposes of the hearing it was accepted that they were not work related. The employee had received medical certificates covering all of his absences for a period of approximately five months, certifying that he was unfit to perform any duties. There was no indication from the medical certificates when he might be fit for a return to work.

At that stage the employer wrote to Mr Duma seeking a report from his treating doctor identifying when he would be likely to be able to return to work. The employee did not respond. A second letter to similar effect was sent to the employee who, again, did not respond.

The second letter warned him that if he failed to respond his employment might be terminated. While there was some dispute about when, exactly, Duma had received them, the employer sent a third and then a fourth letter, both in similar terms to the second letter to him. Both letters were unanswered by the employee.

A fifth letter from the company, again threatening termination of Duma’s employment in the absence of a response, was handed by the employee to his solicitors, who responded on his behalf.

By then, Duma had not worked for more than six months. The employer treated the employment as terminated with effect from 13 July 2006. Medical evidence at the hearing in VCAT in October 2007 indicated that Duma had no capacity for work in the intervening period and in fact would be unlikely to be able to work in the foreseeable future.

VCAT rejected the employee’s claim that he had been directly discriminated against by the employer. However, the tribunal found that the requirement imposed by the company upon the employee to advise it of a prospective return to work date, in consultation with his doctor, was not a reasonable requirement, coupled as it was with the threat to terminate his employment. Accordingly, it was found that the employer had breached the Equal Opportunity Act (Victoria) because it had indirectly discriminated against Duma.

The decision is a difficult one for employers.

It is common for employers to seek to consult with an employee and their medical practitioner about a return to work program in cases of long term injury. Indeed, in cases of work-related injuries, it is a requirement of the relevant legislation that the employer do so. Anti-discrimination legislation in all states, and at a federal level, provides that an employer does not discriminate against an employee who is terminated because he or she is unable to perform the inherent requirements of the position.

VCAT found that it was unlikely that the employee would have had any foreseeable capacity to return to work. The tribunal further commented in its decision that the employer’s conduct may have been considered reasonable, and therefore not unlawful, if the employee’s absence had been longer.

The lesson for employers:

• The decision of VCAT may well hamper an employer’s ability to determine, in good faith, when an employee who has been absent through long term illness or injury may be capable of a return to work.
• Employers should be very careful about employing threats of disciplinary action even if such an employee refuses to co-operate with attempts to obtain a long term prognosis of fitness for work

Related stories:

>> Change employee hours at your peril

>> Long-term injured need handling with care

Peter Vitale is the principal of CCI Victoria Legal