Many business owners, as well as those responsible for the management of employees, shudder at the very thought that they may one day have to terminate the employment of someone on grounds that they are no longer able to fulfil the requirements of their position. This fear is completely understandable, given the complexities involved and the significant legal liability that employers can be exposed to if they get it wrong.
Employers managing ill or injured employees have many legal obligations imposed on them, ranging from those under the work health and safety, anti-discrimination and equal opportunity legislation,
as well the Fair Work Act 2009 (Cth).
When it goes wrong, an aggrieved employee has many legal avenues to pursue their claim. Depending on the avenue taken, the compensation and/or damages that can be awarded to such an employee if successful, is significant.
The recent case of Elaina Tito v Pilbara Iron Company (Services) Pty Ltd  FWC 7469 highlights the considerable lengths that employers have gone to prior to terminating an employee on grounds of incapacity. In this particular case, the employer was able to successfully defend an unfair dismissal claim that was made in response to its decision.
The facts of the case
Ms Elaina Tito ('Ms Tito') was employed by Pilbara Iron Company (Services) Pty Ltd ('Rio') as a full-time mobile plant operator (her "substantive role"). Ms Tito worked 12-hour days, on a fly-in, fly-out roster. In September 2013, Ms Tito sustained a neck injury whilst operating a piece of mobile plant equipment. Approximately six months after the injury, Ms Tito returned to full fitness and recommenced her driving duties.
Unfortunately, Ms Tito sustained another neck injury in July 2016 which required surgery. Initially, Ms Tito returned to her substantive role on restricted duties (one hour of driving followed by one-hour of rest, for the duration of her normal work day, for one week) in accordance with her doctor's advice, and as a "trial" arrangement. However, one and a half hours into her first shift, it was apparent that Ms Tito was unable to perform even her restricted driving duties, due to a significant level of pain and discomfort that she was experiencing.
Although unable to perform her substantive role, Ms Tito was certified as fit to perform alternative duties in administration, which she subsequently performed
up until August of 2018.
Following Ms Tito's surgery, she was regularly reviewed by specialists and general practitioners. Based on the significant evidence provided by these medical professionals over a two-year period, Rio determined that it was unsafe for Ms Tito to operate mobile plant equipment moving forward. Accordingly, Rio initiated an extensive redeployment process to move Ms Tito into a suitable alternative role. As part of the redeployment process, Ms Tito participated in regular meetings with management and HR, was provided with assistance and feedback on job applications and was given weekly "open role" reports.
In mid-August 2018, Rio offered Ms Tito a full-time administration position, however she declined the offer based on her parental responsibilities.
Ms Tito's employment with Rio was subsequently terminated on 27 August 2018 on the basis that she was unable to fulfil the inherent requirements of her role as a mobile plant operator.
Shortly after her termination, Ms Tito lodged an unfair dismissal claim against Rio alleging that she was dismissed:
- Without a valid reason, as no medical evidence was tendered to indicate that she could not fulfil the inherent requirements of her job as a mobile plant operator, at the time of dismissal; and
- that the medical evidence Rio had relied upon did not indicate that she was unable to perform the job of mobile plant operator in the future.
Findings of the Commission
It was apparent that Rio considered Ms Tito's health, safety and wellbeing to be of paramount importance and that it had gone to considerable lengths to facilitate her return to work. Rio also diligently considered the extensive medical evidence and opinions provided by the specialist medical practitioners had who treated Ms Tito over the years. In addition, Rio had consulted with Ms Tito and other key stakeholders throughout the entirety of the return to work process.
When the redeployment position was declined, Ms Tito was given a further opportunity to provide reasons as to why her employment should not be terminated. All reasonable steps were taken by the employer.
Deputy President Beaumont found that Rio did have a valid reason to terminate Ms Tito's employment, with this having been based on sound medical opinions - and that the dismissal was therefore not harsh, unjust or unreasonable. Accordingly, no compensation was awarded to Ms Tito.
Key take away
The dismissing of an employee on the grounds of incapacitation needs to be handled delicately, with care, and to be underpinned by sound legal advice in consideration of the specific facts and circumstances of the case. No one injury or illness is the same, so a "one size fits all" approach is unlikely to reap a successful outcome for either party.
Below are some things to consider:
1. Having a Return to Work policy or program is vital: All employers in New South Wales should have a Return to Work (RTW) policy which
outlines how it will manage an employee's workplace illness and injury, and the steps that it will take to get them back into the workplace as soon
A RTW policy will need to be applied consistently across the business. Accordingly, it is important that a business strictly complies with its RTW policy in the event of an injured or ill worker, as there may be consequences for non-compliance. When drafting a RTW policy, consideration must be put towards any relevant work, health and safety legislation applicable in the State or Territory within which a business operates.
2. Open communication: As always, open and candid communication is the key to success.
Keeping the dialogue open between employer and employee is integral in ensuring that the employment relationship does not erode to a point of irreparable damage.
On a practical note, if an employer has an Employee Assistance Program, it may be wise to encourage the employee to utilise such a service as a means of additional support throughout the RTW process.
3. Consultation: All parties, including the employer, employee, employee representative (if applicable), human resources (or RTW co-ordinators), medical/health professionals and insurers should be kept regularly updated on how the employee is progressing, and whether
any adjustments (large or small) need to be made to the RTW plan.
Having all participants involved will ensure that issues are both addressed and rectified promptly.
If your organisation is facing the difficult task of managing an ill or injured employee, or you have a question relating to anything in this article, please do not hesitate to get in touch with Coleman Greig's Employment Law team.
About the author: Shanni Zoeller is a lawyer on Coleman Greig's employment law team.