вторник, 20 января 2015 г.

Австралия (трудовые отношения). Работник отсутствовал на предприятии более 3 месяцев (10 месяцев) по причине нетрудоспособности (болезни), что дало основание нанимателю уволить его. Однако, увольнение было признано незаконным в соответствии с анти-дискриминационным законодательством

Workplace Bulletin
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What you must know before dismissing an ill or 

injured employee

Wednesday, 14th January 2015, by Loran McDougall

In today's Workplace Bulletin:
  • Case Law: When dismissing an employee after an extended absence will be unlawful
Dear Reader,

As you may know, your employees are protected from dismissal if they are temporarily absent from work because of an illness or injury.
An employee is protected if they:
  • provide a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within 24 hours after the commencement of the absence (or a longer period, if it is reasonable in the circumstances); and
  • have met any reasonable requirements (imposed by a policy, enterprise agreement or the specific situation) regarding giving notice about the sick leave.
For example, if you established a rule requiring employees to call their supervisor to notify them of a sick leave absence at least 1 hour before a shift is due to commence, the employee must either meet this requirement or have a reasonable excuse for not meeting the requirement.

An employee is not protected if:
  • their absence extends for more than 3 months, or their total absences within a 12-month period exceed 3 months (whether the absences relate to a single illness or injury or separate illnesses or injuries); and
  • they are not on paid personal/carer's leave for the duration of the absence.
Note that the protection does not apply if the employee is on paid personal/carer's leave for part of the period of absence. For example, if an employee has been absent on sick leave for 4 months and the last week of this period is not taken as paid personal/carer's leave, the protection will not apply.

Also note that paid personal/carer's leave does not include a period in which the employee is absent from work while receiving workers' compensation.

Today, Charles Power looks at a case that illustrates the complexities of this area. It looks at why an employee’s dismissal was unfair, despite the employee having been absent for more than 3 months and not being on paid leave for the duration of his absence.
Until next time,
Jessica Oldfield
Loran McDougall
Workplace Bulletin
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Case Law: When dismissing an employee after an 

extended absence will be unlawful
by Charles Power
Editor-in-Chief, Employment Law Practical Handbook

In McGarva v Enghouse Australia Pty Ltd (2014), an employee was absent from work for 10 months due to cancer. When the employee wanted to return to work, he was dismissed.

When the dismissal was challenged in Court, the employer argued that the employee was not protected from dismissal for being temporarily absent from work because of an illness or injury because:
  • the employee's absence had extended for more than 3 months; and
  • the employee was not on paid personal/carer's leave for the duration of the absence.
However, when the Court examined the employer’s reason for dismissal, it determined that the reason for dismissal was not that the employee was absent from work because of illness or injury. Rather, it said, the employee’s physical disability was the reason for the dismissal.

This brought discrimination law into play. The question, then, was whether the employee was:
  • treated less favourably than an employee in the same or similar circumstances who did not have the disability; or
  • subjected to a requirement that he could not meet, but that a person without his disability could have met in the circumstances.
Although a discrimination claim may be defended if the employee cannot fulfil the inherent requirements (or essential activities) of the job, in this case the evidence suggested that the employee would have been able to fulfil the inherent requirements of the job, with reasonable adjustments.

What you can take away from this case

Be cautious when dismissing an employee who is absent from work because of illness or injury. You need to clearly explain and prove the reason for the dismissal.
Ask yourself the following questions:
  • Is the reason for dismissal that the employee is not meeting your sick leave notice requirements?You need to show that the requirement was reasonable in order for the protection not to apply to the employee.
  • Is the reason for dismissal that the employee's absence has extended for more than 3 months?You need to show that the employee was not on paid personal/carer's leave for the duration of the absence.
  • Is the reason for dismissal that you have concluded that the employee’s illness or injury, i.e. the reason for the absence, means the employee can no longer perform their job? You need to be able to demonstrate that this is the case based on the proven job requirements and the best available evidence of the employee’s work capacity. You also need to be able to show that there are no reasonable adjustments you could make in the workplace to allow the employee to overcome the incapacity and return to work to perform the job.
How else can you reduce your legal risk?
Of course, in all of the above scenarios, the employee may be able to challenge the dismissal under unfair dismissal laws. To lessen this risk, you need to:
  • give the employee an opportunity to respond to the reason for dismissal before proceeding with the dismissal;
  • take into account factors that will determine the impact of the dismissal on the employee, including their employment history with you and their age.
Finally, if the employee has lodged a workers’ compensation claim in relation to the illness or injury because it is work-related and your insurer has accepted this claim, you may have an obligation to maintain the employee’s employment for a certain period and offer suitable opportunities to return to work.
In short, it’s a diabolical area of the law!
Charles Power
Charles Power

Employment Law Practical Handbook

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