There are multiple pieces of legislation which may affect these situations including the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the Fair Work Act 2009 (Cth), and federal and state anti-discrimination law. In certain circumstances, the dismissal of an injured worker may be entirely lawful. In many cases, however, employers can be liable for damages claims and the imposition of penalties under some or all of these laws.
In one of the matters we acted in recently, an employee had been dismissed for taking sick leave for various illnesses. The employer assumed that its decision was appropriate because the employee was still in his probationary period. This assumption was incorrect and exposed the employer to a claim for damages and penalties. It was unlawful under the Fair Work Act for the employer to have dismissed the employee for a temporary absence from work due to illness or injury, regardless of whether the employee was on probation.
In another recent matter, we provided advice to an employee who had been threatened with dismissal due to a long term work-related injury which, in the employer’s view, prevented the employee from fulfilling the inherent requirements of his role. It was apparent, however, that the employer had not properly assessed the nature of the client’s pre-injury duties, the employer’s obligation to rehabilitate, the reason for the client’s reduction in hours over recent months and alternatives to dismissal. Again, by threatening dismissal without properly considering the law concerning treatment of injured workers, the employer was exposing itself to serious potential liabilities.
We are also regularly engaged to advise employees and employers in relation to complaints to anti-discrimination bodies by workers who claim they have been treated less favourably because of an injury or illness.
Each avenue requires different considerations concerning the right to commence proceedings, time limitations, the damages which can be claimed and the process involved.
This is often a complicated and difficult area for employers and employees to deal with and, therefore, we strongly urge people in this situation to obtain advice about their rights.
