7 must DOs before you dismiss an ill or injured worker
By Joanna Weekes
If you have an ill or injured worker, you might think that it is in your best interest to get them back into the workplace and working as quickly as possible – but this is not always the case. Early return to work is not always the right approach, it can agitate and extend an issue that could have been resolved in a shorter time with more rest.
The decision to return a worker to work should be based on what the worker is capable of safely doing when they return to work.
The decision about when a worker should return to work should be made with consultation between management, the worker, and after seeking professional medical advice. What if the worker is not fit for their pre-injury duties?
If you determine (with the advice of a medical professional) that the worker will not become fit for their pre-injury duties for the foreseeable future, you will need to decide whether:
- you can offer the worker ongoing employment in a modified role to accommodate their condition; or
- you are going to terminate their employment.
If both parties agree to the modified duties, then a new contract of employment can be drawn up. If this is the case, you can set goals that you and the injured worker have agreed on to ensure there is a clearly communicated expectation that the injured worker will return to their pre-injury duties.
Remember, if a worker continues on modified duties for a prolonged period with no current plan to return to their pre-injury duties, it is arguable that the worker has been permanently appointed to a new role. When this occurs, the worker’s old contract of employment is effectively terminated and replaced with a new one.
If this were the case, you would be unable to dismiss the worker on the basis that they are permanently unable to return to their original position, as they have been appointed to a new role.
Employers are generally prohibited from dismissing an employee because of incapacity due to illness or injury. However, there are certain circumstances in which you can dismiss an employee who is ill or injured.
Before you terminate an injured worker, you must ensure that you do the following things:
- Obtain sound medical evidence regarding the worker’s incapacity.
- Determine, and be able to prove, that the worker is unable to perform the job they were employed to perform.
- Determine, and be able to prove, that there is no reasonable measure you can take to accommodate the worker’s injury or illness.
- Do not create an expectation in the worker that you will provide them with modified duties on an ongoing basis.
- Give the worker an opportunity to respond to the allegation that they are unfit for their duties and to the intention to terminate their employment.
- Consider the worker’s length of service, employment history and the impact of dismissal on them.
- Check that you have no obligation to provide suitable employment under the workers’ compensation legislation in your jurisdiction.
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