This case presents as a timely reminder regarding an employer’s obligations before terminating an ill or injured worker, irrespective of whether that worker has been in receipt of workers’ compensation entitlements.

This matter arose as a consequence of an unfair dismissal application by the worker (Ms Geselle) and was heard by the South Australian Employment Tribunal (the Tribunal) as it concerned a worker employed by the State Government, who was therefore covered by the Fair Work Act 1994 (SA).

Ms Geselle had been a registered nurse, employed by the State Government (the Employer) who was terminated as a consequence of her long-term absence from the workplace. Prior to her termination, Ms Geselle had lodged workers’ compensation claims in respect of a right knee injury and psychological injury; she also suffered from obesity. Notwithstanding this, Ms Geselle had made attempts to return to work, including by losing weight and requesting alternative lighter duties.

Despite her requests to return to work, Ms Geselle was stood down on full pay for 14 months. During that time, her employer directed her to attend for medical examinations by an occupational physician and occupational therapist, and also obtained a report from a physiotherapist. However, the Employer did not seek information from Ms Geselle’s treating practitioners in respect of her capacity.

The Employer denied her request to take approximately 750 hours of accrued paid leave and it did not consider her request for leave without pay.

In finding that the termination had been harsh, unjust and unreasonable, the Tribunal determined that the Employer:

  • Did not consider the worker’s plans to improve her functional capacity;
  • Made no attempt to obtain medical evidence from Ms Geselle’s treating practitioners;
  • Incorrectly determined that the medical evidence supported a finding that Ms Geselle was unlikely to regain capacity to perform the inherent requirements of her role within 12 months (being the period of unpaid leave permitted by the Employer’s policy).
  • Deliberately withheld a second report from the occupational physician which stated that Ms Geselle was fit for full hours subject to lighter duties or a sedentary role.
  • Had been partly motivated by wanting to avoid a workers’ compensation claim from the worker for psychological injury, which was an invalid consideration;
  • Did not consider suitable alternate light nursing or administrative duties outside of the medicine division while Ms Geselle sought treatment;
  • Did not permit Ms Geselle to use her accrued leave and did not consider her application for leave without pay, which was contrary to the Employer’s policy.

The Tribunal ordered that Ms Geselle be reinstated to a nursing role in a different nursing division and that an assessment of her capacity for a suitably modified role be conducted after a reasonable period for recovery. It further ordered that Ms Geselle not be returned to the same ward or under management of the same divisional nursing director (as they were heavily involved in the termination process).

This decision highlights the risks in terminating ill and injured workers, and is a reminder to employers to ensure that, before moving to a termination, employers must, inter alia: comply with their own policies; consider all relevant medical evidence; explore alternative duties; and ensure the decision is not motivated by invalid considerations.

For these reasons, we encourage our members who are managing ill and injured workers to speak with us before making a decision to terminate an ill or injured worker.

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