Failure to manage ill and injured employees effectively: Employers at risk

The recent decision in Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 highlights whether a direction by an employer for an employee to attend an IME is lawful and reasonable. We learn more about this with Annie Smeaton of Cooper Grace Ward.

ELM: We understand that failure to manage ill and injured employees appropriately puts Australian employers at risk. What we want to understand better from you Annie is, from a legal perspective, what sorts of claims have arisen because of this mismanagement?

ANNIE: There are a diverse range of claims that can arise due to employers failing reasonable and lawfully manage ill and injured employees, including unlawful disability discrimination, general protections, unfair dismissal, bullying, breach of contract and workers’ compensation.

ELM: Are there any particular new cases that clarify the legal requirements an employer has with regards to this topic?

Annie: The recent decision in Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374. This case turns on whether a direction by an employer for an employee to attend an IME is lawful and reasonable.

Grant v BHP was an appeal from the Full Bench of the Fair Work Commission concerning the Full Bench’s decision to confirm Commissioner Spencer’s finding that BHP’s direction to Mr Grant to attend an IME was lawful and reasonable and that Mr Grant’s dismissal for, among other things, failing to attend the IME, was not harsh, unjust or unreasonable.

While Justice Collier found that the common law right not to be forced to undertake a medical assessment could only be abrogated by clear parliamentary intention or other lawful authority, relevantly her Honour found that the Coal Mining Safety and Health Act 1999 (Qld) even in broad terms evidenced the intention that BHP was entitled to direct Mr Grant to undergo a medical assessment in certain circumstances.

This decision is currently on appeal.

ELM: From your experience, how have these claims impacted organisations and employers?

ANNIE: These types of claims can be costly and drain time and resources away from the organisation.  A significant impact can result in employers becoming frozen in regard to their decision making about managing ill and injured employees.

ELM: For our readers’ benefit, when managing a situation of an ill or injured employee, what are some key steps you would advise them to take to reduce (or prevent) any legal issues arising?

ANNIE: In my view one of the most important steps is to ensure a collaborative approach to the management of an ill or injured employee so the employee is onboard and part of the decision making process.  This is achieved through a fair and reasonable management process that includes transparency and seeks the employee’s buy-in.

Another important step is to effectively brief the occupational physician with all the relevant information and seek answers to well thought out questions about the employee’s impairment and limitations arising from that impairment measured against the inherent requirement of the employee’s position she/he is employed to perform.  It is also for the employer to determine whether any adjustments that the occupational physician has recommended are ‘reasonable’ in terms of the employee’s position and the employer’s operational requirements, among other considerations.  The occupational physician can determine whether any adjustments are required but not whether they are reasonable in the relevant circumstances.

ELM: Complementing a strong understanding of how to appropriately manage ill and injured employees is having an effective return-to-work and rehabilitation process. How can companies ensure theirs is aligned with appropriate legislations?

ANNIE: In terms of rehabilitation and return to work, employer’s should consider their statutory obligations under the applicable workers’ compensation laws and (if applicable) any obligations under their enterprise agreement.

An effective return to work and rehabilitation process may also vary depending on whether the injury or illness is work or non-work related.

Any process should include requirements about fitness for duty and disclosure of information.

ELM: What top three pieces of advice do you have for HR teams that are currently facing challenges around this topic?

ANNIE:

  • Seek the co-operation of the employee early by being fair, reasonable and transparent.
  • Be consistent and ensure you effectively brief the occupational physician.
  • Understand the employer’s obligations and rights in terms of requiring employees to safely perform the inherent requirements of their position and ensuring, so far as is reasonably practicable, the health and safety of their workers while at work in the business or undertaking.

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About Annie Smeaton:

With more than 14 years’ experience as an advocate with a strong background in industrial and employment litigation, Annie specialises in employment, anti-discrimination and industrial law. She has extensive experience dealing with proceedings in the Federal Court, Federal Circuit Court, Queensland Industrial Relations Commission, Fair Work Commission, Australian Human Rights Commission, Anti-Discrimination Commission and the Queensland Civil and Administrative Tribunal.

Annie’s extensive experience includes conducting workplace investigations concerning harassment, bullying and safety breaches, providing advice to clients about a range of issues including restraint of trade, employee entitlements, workplace misconduct, employee discipline and termination of employment.

Annie is the workshop facilitator for the upcoming Managing Ill Employees, Absenteeism and Return to Work course for Brisbane on 18 July.