Injured Workers - Consequences of Inappropriate Conduct
Injured Workers - Consequences of Inappropriate Conduct
The worker at the centre of the Coles Myer case, Mr Gounder, initially worked for both Coles Myer and Australian Pharmaceuticals Limited (APL). However, an injury during the course of his employment with Coles Myer resulted in Mr Gounder having to cease his employment with APL.
Following the date of his workplace injury, Mr Gounder worked only for Coles Myer. The weekly workers’ compensation payments that Mr Gounder received from Coles Myer included an amount to compensate him for the loss of his job with APL.
During the period of his rehabilitation, Mr Gounder was caught shoplifting at a Coles Myer store. As a result, his employment with Coles Myer was terminated for serious and wilful misconduct and his weekly compensation payments were cut off. Under workers’ compensation laws in South Australia, an employer may discontinue weekly compensation payments if an injured worker is dismissed for serious and wilful misconduct.
In response to Coles Myer cutting off his weekly compensation payments, Mr Gounder commenced proceedings in the South Australian Workers’ Compensation Tribunal. It was argued by Mr Gounder that as the shoplifting was in no way connected to his former position with APL, his misconduct could not be relied upon to discontinue that portion of his weekly compensation payments that related to the loss of his job with APL.
The Tribunal found that Coles Myer acted lawfully in terminating Mr Gounder’s employment. The Tribunal also concluded that under South Australian law an employer has a right to discontinue all weekly compensation payments if an employee is terminated for serious and wilful misconduct.
The case raises the issue of disciplinary action against injured workers during periods of rehabilitation. Employees receiving workers’ compensation benefits and/or engaged in a rehabilitation program maintain the same rights and obligations as other employees. An injured worker is not above the law and is not protected or exempt from disciplinary action merely because the worker is recovering from, or has suffered, a workplace injury.
Injured Workers - Consequences of Inappropriate Conduct
As demonstrated by the Coles Myer case, an injured worker who participates in misconduct may jeopardise their workers’ compensation entitlements in addition to being subject to disciplinary action.
Whilst workers’ compensation laws in South Australia allow an employer to cut off weekly compensation payments if an employee is terminated for reason of serious and wilful misconduct, that right is not replicated in the other States or Territories throughout Australia. This does not mean to say that injured workers in other jurisdictions can behave in any way they like without jeopardising their workers’ compensation entitlements.
For example, in New South Wales, an employee who:
• Unreasonably refuses suitable employment as offered by the employer; or
• Refuses to participate in rehabilitation training; or
• Fails to comply with a return to work plan or injury management plan;
may forfeit their entitlement to weekly compensation benefits.
In Victoria, an injured worker may have their weekly compensation benefits cut off where the worker fails to comply with a return to work offer without legitimate excuse. Further, in all States and Territories throughout Australia compensation entitlements are generally not available where the worker’s injury is attributable to the worker’s serious and wilful misconduct. In some limited cases however, compensation may still be available where the injury results in death or serious and permanent disability despite the workers having engaged in serious and wilful misconduct.
Where an injured worker participates in misconduct in the course of their employment or is otherwise unco-operative with his or her employer regarding their own rehabilitation or injury management, the employer ought advise the worker that such conduct may, in addition to resulting in disciplinary action, jeopardise the employee’s workers’ compensation entitlements. Making employees aware of this may result in a correction of any inappropriate behaviour.
Laws Protecting Injured Workers
There are an array of laws that protect the rights of injured workers. When making decisions about the management of injured workers, especially decisions regarding termination of employment, it is crucial for employers to have regard to the potential legal risks proposed by these laws. Some of the main laws that protect injured workers are summarised below.
Discrimination Laws
Both Federal and State laws dealing with disability discrimination make it unlawful for an employer to terminate a worker, or otherwise treat a worker unfavourably, because of a worker’s disability. A workplace injury will, in most instances, constitute a disability within the meaning of disability discrimination laws.
Generally, an employer will have a defence to a claim of disability discrimination if the employer can prove that the injured worker is unable to carrying out the “inherent requirements” of the employee’s position. The “inherent requirements” of a particular position basically mean the key job functions of the position.
In most instances, an employer will only be able to rely upon the “inherent requirements” defence to a disability discrimination claim if the employer has given proper consideration to whether there are any services or facilities that the employer could reasonably provide in order to assist an injured worker to perform the “inherent requirements” of the worker’s job.
Unfair Dismissal Laws
Where an employer terminates an injured worker in circumstances that are harsh, unjust or unreasonable, the injured worker would be able to bring an unfair dismissal claim unless the worker falls within one categories of worker who are exempt from being able to bring an unfair dismissal claim.
In cases where an injured worker has access to unfair dismissal laws, an employer can reduce the risk of the worker succeeding in an unfair dismissal claim by ensuring that there is a valid reason for the termination and by ensuring that the termination of employment is effected in a procedurally fair manner.
If an employer is considering the termination of a worker because of a workplace injury, as opposed to say misconduct of the worker, the employer should consider obtaining a medical report from a suitably qualified medical practitioner which comments on the employees’ fitness for work. The employer should only consider proceeding with the termination if the medical evidence indicates that the employee is unfit for any existing positions within the employer’s business. Terminating an injured worker on the basis of their injury, without first obtaining a medical report which supports the decision to terminate the injured worker, significantly increases the risk of an employee succeeding in an unfair dismissal claim.
Unlawful Termination Claim
Federal workplace relations laws set out a number of grounds upon which an employer must not terminate an employee’s employment. Termination on the basis of one of these grounds is known as “unlawful termination” which differs from the concept of unfair dismissal.
One of the prohibited grounds for unlawful termination under Federal workplace relations laws is “physical or mental disability”. An employee’s workplace injury will invariably constitute a physical or mental disability.
An employer will have a defence to an unlawful termination claim if it is able to establish that the physical or mental disability from which the worker suffers prevents the worker from being able to fulfil the “inherent requirements” of the particular job. Again, proper medical evidence should be obtained by an employer in order to determine whether a worker’s injuries prevent the worker from fulfilling the “inherent requirements” of his or her job.
Unlawful termination laws also state that an employer must not terminate an employee because of a “temporary absence from work” on account of injury or illness where the temporary absence is 3 months or less in duration. Importantly, where an employee is receiving paid sick leave entitlements or weekly compensation entitlements the employee may still be regarded as being on a “temporary absence from work” even though the period of the absence exceeds 3 months. This limitation on the right to terminate an injured worker does not prevent an employer for terminating a worker’s employment during a period of absence for reasons unrelated to the worker’s absence.
Workers Compensation Legislation
Generally, workers compensation laws throughout Australia require an employer to participate in an injured workers rehabilitation to the extent possible.
In addition to breaching the laws referred to above, an employer may breach workers compensation laws by terminating an injured worker or by otherwise failing to co-operate in an injured workers rehabilitation without lawful excuse.
In some instances, workers compensation laws also provide an injured worker, who is terminated because of a workplace injury, with a right to be reinstated into their former position if the injuries to the worker resolve within a prescribed timeframe.
Conclusion
Employers sometimes shy away from taking disciplinary action against injured workers out of fear that the employer may breach the array of laws that protect injured workers. The decision in the Coles Myer case reaffirms that employers are able to take disciplinary action against injured workers in the same way that disciplinary action can be taken against employees without a workplace injury. The laws which protect injured workers do not prevent an employer from taking legitimate disciplinary action against an injured worker who is guilty of misconduct or who otherwise fails to co-operate with the employer regarding the worker’s rehabilitation or injury management.
Injured Workers Consequences of Inappropriate Conduct - To learn more about this author, visit Jason Donnelly's Website.
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The Coles Myer Case
The worker at the centre of the Coles Myer case, Mr Gounder, initially worked for both Coles Myer and Australian Pharmaceuticals Limited (APL). However, an injury during the course of his employment with Coles Myer resulted in Mr Gounder having to cease his employment with APL.
Following the date of his workplace injury, Mr Gounder worked only for Coles Myer. The weekly workers’ compensation payments that Mr Gounder received from Coles Myer included an amount to compensate him for the loss of his job with APL.
During the period of his rehabilitation, Mr Gounder was caught shoplifting at a Coles Myer store. As a result, his employment with Coles Myer was terminated for serious and wilful misconduct and his weekly compensation payments were cut off. Under workers’ compensation laws in South Australia, an employer may discontinue weekly compensation payments if an injured worker is dismissed for serious and wilful misconduct.
In response to Coles Myer cutting off his weekly compensation payments, Mr Gounder commenced proceedings in the South Australian Workers’ Compensation Tribunal. It was argued by Mr Gounder that as the shoplifting was in no way connected to his former position with APL, his misconduct could not be relied upon to discontinue that portion of his weekly compensation payments that related to the loss of his job with APL.
The Tribunal found that Coles Myer acted lawfully in terminating Mr Gounder’s employment. The Tribunal also concluded that under South Australian law an employer has a right to discontinue all weekly compensation payments if an employee is terminated for serious and wilful misconduct.
The case raises the issue of disciplinary action against injured workers during periods of rehabilitation. Employees receiving workers’ compensation benefits and/or engaged in a rehabilitation program maintain the same rights and obligations as other employees. An injured worker is not above the law and is not protected or exempt from disciplinary action merely because the worker is recovering from, or has suffered, a workplace injury.
Injured Workers - Consequences of Inappropriate Conduct
As demonstrated by the Coles Myer case, an injured worker who participates in misconduct may jeopardise their workers’ compensation entitlements in addition to being subject to disciplinary action.
Whilst workers’ compensation laws in South Australia allow an employer to cut off weekly compensation payments if an employee is terminated for reason of serious and wilful misconduct, that right is not replicated in the other States or Territories throughout Australia. This does not mean to say that injured workers in other jurisdictions can behave in any way they like without jeopardising their workers’ compensation entitlements.
For example, in New South Wales, an employee who:
• Unreasonably refuses suitable employment as offered by the employer; or
• Refuses to participate in rehabilitation training; or
• Fails to comply with a return to work plan or injury management plan;
may forfeit their entitlement to weekly compensation benefits.
In Victoria, an injured worker may have their weekly compensation benefits cut off where the worker fails to comply with a return to work offer without legitimate excuse. Further, in all States and Territories throughout Australia compensation entitlements are generally not available where the worker’s injury is attributable to the worker’s serious and wilful misconduct. In some limited cases however, compensation may still be available where the injury results in death or serious and permanent disability despite the workers having engaged in serious and wilful misconduct.
Where an injured worker participates in misconduct in the course of their employment or is otherwise unco-operative with his or her employer regarding their own rehabilitation or injury management, the employer ought advise the worker that such conduct may, in addition to resulting in disciplinary action, jeopardise the employee’s workers’ compensation entitlements. Making employees aware of this may result in a correction of any inappropriate behaviour.
Laws Protecting Injured Workers
There are an array of laws that protect the rights of injured workers. When making decisions about the management of injured workers, especially decisions regarding termination of employment, it is crucial for employers to have regard to the potential legal risks proposed by these laws. Some of the main laws that protect injured workers are summarised below.
Discrimination Laws
Both Federal and State laws dealing with disability discrimination make it unlawful for an employer to terminate a worker, or otherwise treat a worker unfavourably, because of a worker’s disability. A workplace injury will, in most instances, constitute a disability within the meaning of disability discrimination laws.
Generally, an employer will have a defence to a claim of disability discrimination if the employer can prove that the injured worker is unable to carrying out the “inherent requirements” of the employee’s position. The “inherent requirements” of a particular position basically mean the key job functions of the position.
In most instances, an employer will only be able to rely upon the “inherent requirements” defence to a disability discrimination claim if the employer has given proper consideration to whether there are any services or facilities that the employer could reasonably provide in order to assist an injured worker to perform the “inherent requirements” of the worker’s job.
Unfair Dismissal Laws
Where an employer terminates an injured worker in circumstances that are harsh, unjust or unreasonable, the injured worker would be able to bring an unfair dismissal claim unless the worker falls within one categories of worker who are exempt from being able to bring an unfair dismissal claim.
In cases where an injured worker has access to unfair dismissal laws, an employer can reduce the risk of the worker succeeding in an unfair dismissal claim by ensuring that there is a valid reason for the termination and by ensuring that the termination of employment is effected in a procedurally fair manner.
If an employer is considering the termination of a worker because of a workplace injury, as opposed to say misconduct of the worker, the employer should consider obtaining a medical report from a suitably qualified medical practitioner which comments on the employees’ fitness for work. The employer should only consider proceeding with the termination if the medical evidence indicates that the employee is unfit for any existing positions within the employer’s business. Terminating an injured worker on the basis of their injury, without first obtaining a medical report which supports the decision to terminate the injured worker, significantly increases the risk of an employee succeeding in an unfair dismissal claim.
Unlawful Termination Claim
Federal workplace relations laws set out a number of grounds upon which an employer must not terminate an employee’s employment. Termination on the basis of one of these grounds is known as “unlawful termination” which differs from the concept of unfair dismissal.
One of the prohibited grounds for unlawful termination under Federal workplace relations laws is “physical or mental disability”. An employee’s workplace injury will invariably constitute a physical or mental disability.
An employer will have a defence to an unlawful termination claim if it is able to establish that the physical or mental disability from which the worker suffers prevents the worker from being able to fulfil the “inherent requirements” of the particular job. Again, proper medical evidence should be obtained by an employer in order to determine whether a worker’s injuries prevent the worker from fulfilling the “inherent requirements” of his or her job.
Unlawful termination laws also state that an employer must not terminate an employee because of a “temporary absence from work” on account of injury or illness where the temporary absence is 3 months or less in duration. Importantly, where an employee is receiving paid sick leave entitlements or weekly compensation entitlements the employee may still be regarded as being on a “temporary absence from work” even though the period of the absence exceeds 3 months. This limitation on the right to terminate an injured worker does not prevent an employer for terminating a worker’s employment during a period of absence for reasons unrelated to the worker’s absence.
Workers Compensation Legislation
Generally, workers compensation laws throughout Australia require an employer to participate in an injured workers rehabilitation to the extent possible.
In addition to breaching the laws referred to above, an employer may breach workers compensation laws by terminating an injured worker or by otherwise failing to co-operate in an injured workers rehabilitation without lawful excuse.
In some instances, workers compensation laws also provide an injured worker, who is terminated because of a workplace injury, with a right to be reinstated into their former position if the injuries to the worker resolve within a prescribed timeframe.
Conclusion
Employers sometimes shy away from taking disciplinary action against injured workers out of fear that the employer may breach the array of laws that protect injured workers. The decision in the Coles Myer case reaffirms that employers are able to take disciplinary action against injured workers in the same way that disciplinary action can be taken against employees without a workplace injury. The laws which protect injured workers do not prevent an employer from taking legitimate disciplinary action against an injured worker who is guilty of misconduct or who otherwise fails to co-operate with the employer regarding the worker’s rehabilitation or injury management.
Injured Workers Consequences of Inappropriate Conduct - To learn more about this author, visit Jason Donnelly's Website.
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