Joining me today to talk about how to manage ill and injured workers is Troy Wild, who's an Associate in the Industrial and Employment Law Team at HopgoodGanim; Troy thanks for joining us.
Thank you very much Kate, pleasure to be here.
It's great to have you. Now, Troy, managing ill and injured workers is an area of human resources that poses a number of risks for workplaces and HR professionals. What do you see, I guess, are some of the key risks?
Well, the risks are numerous, it's a big topic, Kate. The area is highly regulated under various Commonwealth, State and Territory legislation and it does remain a significant area of concern for employers. This is particularly the case when faced with long term absenteeism, whether managing an ill or injured employee's return to work or their dismissal. Employers need to exercise caution so as to avoid potential liability, including in terms of unlawful discrimination, unfair dismissal and breach of general protections under the Fair Work Act, workers compensation claims and breach of contract claims.
And, Troy, are there any common traps that you see that businesses fall into when they're trying to manage these various issues?
Well perhaps one of the most common traps Kate is an employer failing to consider and take into account that in these types of situations employees are often in a highly vulnerable emotional state, which in itself makes the management process all the more difficult and fraught with risk. The golden rule I suppose is always to act strictly in accordance with available medical evidence and to avoid making assumptions of a medical nature. In other words don't play doctor, but as most HR professionals will know from their own experience medical information provided by an employee is often incomplete, out of date, ambiguous. Common examples of some narratives that are found on medical certificates include things such as fit for light duties, unfit for normal work on account of a medical condition, well what does that mean? It's very unclear. So if an employer has genuine concerns that available medical evidence is unreliable or uninformative then employers need to ask for additional medical information so as they can properly manage the situation and most importantly manage their health and safety obligations.
And can employers send the employees to doctors if they think that the information they have is not enough?
Yes they certainly can, that remains a common law right of an employer to seek additional medical information, again to satisfy workplace health and safety obligations.
So just I guess finally Troy what are your top tips for HR practitioners when it does come to managing ill and injured workers aside from the medical evidence point?
Certainly position descriptions, make sure they're up to date and they accurately describe the inherent requirements of a role to be performed. This will avoid any arguments about this later and it also makes it easier to obtain medical opinions from treating doctors and medical examiners. Be proactive, if an employer is on notice of possible mental health issues or that medical certificate's relied upon to establish an employee's fitness for work is unreliable then employers need to take charge and seek additional medical evidence at an early stage. Otherwise an employer may be held liable for any additional injury that actually occasions to the employee or a co-worker which might be caused by a person's lack of capacity to safely perform their role.
Well some good advice there and thanks for giving us your insights on this complicated issue.
Pleasure Kate, thank you very much for the opportunity.
That was Troy Wild who is an Associate in the Industrial and Employment Law Team at HopgoodGanim. Now listeners if you have any questions you can send them through either using the panel on your screen or of course via email to law@brrmedia.com.
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