The document discusses common issues that employers may face when managing ill or injured employees, including how to appropriately handle medical certificates, leave requests, and fitness for work assessments. It provides guidance on when employers can require employees to undergo independent medical examinations or dismiss employees during probation periods. The document emphasizes that employers must balance employee health and workplace obligations carefully while complying with various discrimination, privacy, and workplace laws.

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Managing ill and
injured workers
Common issues
26 August 2015
Russell Kennedy
Libby Pallot, Principal
Ben Tallboys, Senior Associate
BodyCare Workplace Solutions
Claire Ebstein

2. > Introduction
> Challenging medical certificates
> Medical examinations
> Illnesses and injuries during probation
> Proactive measures
> Q & A
Topics we will cover
2

3. Illnesses and
injuries
Termination
laws
Discrimination
laws
Industrial laws
Privacy laws
OH&S laws
Workers’
compensation
laws
3

4. Dubious claims for
personal/carer’s leave

5. > Employees can be required to provide a
medical certificate or statutory declaration
to support a claim for leave
> Exception – Employment contract or
enterprise agreement says otherwise
General rule #1
5

6. > Medical certificate generally stands as
proof of an illness or injury
> Exception – Unusual or extraordinary
circumstances
> Vague/inconsistent certificates
> Certificate contradicted by evidence
> Doctor not properly qualified
General rule #2
6

7. > Sunday: Employee emails in sick for the
next week
> Wednesday: Submits a medical
certificate
> Only saw the doctor that day
> Friday: Employee posts on Facebook that
she travelled to Queensland on Thursday
for her nephew's birthday party
Scenario 1
The Holiday
7

8. > Medical certificates are generally binding
> You cannot discipline someone for taking
sick leave
> An employee travelling to attend a social
function while on sick leave is unusual
> You can dismiss an employee for falsely
taking sick leave, but be very careful
Scenario 1
Considerations
8

9. > Employee’s work camera shows
employee at Grand Prix earlier this year
> Employee took sick leave!
> Colleagues: Employee prefers going to
the Grand Prix on weekdays
> Employee took sick leave on same days
as Grand Prix in previous years
Scenario 2
The Grand Prix
9

10. > An employee attending a social event
during working hours while on sick leave
is unusual/extraordinary
> Grounds for challenging leave entitlement
> But there may be a valid explanation
> Be very careful before finding that the
employee falsely claimed sick leave
Scenario 2
Considerations
10

11. > Employee's husband breaks his leg
> Employee applies for two months' carer's
leave!
> Colleague: Husband seen walking around
alone without discomfort
> Not prepared to be a witness
> Employee provides husband’s medical
certificate
Scenario 3
The Broken Leg
11

12. > Employee can take carer’s leave if
required to provide care
> You can request a medical certificate
> A report explaining the “requirement” might
be appropriate for lengthy or repeated
absences
> Generally cannot seek a second opinion
Scenario 3
Considerations
12

13. > Employee engages in misconduct
> Stood down pending an investigation
> Required to attend a meeting to provide a
response
> Employee provides a medical certificate
saying they cannot attend or provide a
written response
Scenario 4
The Defence
13

14. > Employee cannot be disciplined because
they took sick leave
> Unfair dismissal rules require employee
to be given an opportunity to respond to
allegations
> Can send employee to medical
examination
> Get legal advice early and often
Scenario 4
Considerations
14

15. When can I direct a staff member
to attend an independent medical
examination?

16. Employer can require an employee to
obtain a medical certificate or report if
there is a legitimate concern about the
employee’s:
> Capacity to attend work
> Capacity to perform inherent requirements of
position
> Capacity to safely perform duties
General rule #3
16

17. > An employee can be directed to attend an
IME if there is a reasonable doubt about
the employee’s existing clearance
> Examples:
> Vague certificate or report from GP
> Contradicted by evidence
> GP not specialised
General rule #4
17

18. > Employee regularly in trouble at work
> But also a union delegate
> Constantly refers to a "condition" to justify
his behaviour or deflect critcism
> Employer wants to commence a formal
performance-management process
Scenario 5
The Excuse-Maker
18

19. > Risk of general protection claim
> Employer has an OH&S obligation to
ensure employee is safe at work
> Employer is now on notice
> Employer can direct an employee to
obtain medical clearance from their GP
> If still not satisfied, can send employee to an
Occupational Physician or specialist
Scenario 5
Considerations
19

20. > October 2011: Boilermaker suffered a
work-related shoulder injury
> March 2013:
> Employee sought to return to work
> Medical certificate: Employee “fit to return to
his normal duties”
> Employer directed employee to attend an
IME
> Employee refused
Scenario 6
The Long-Term Injury
20

21. > Medical certificates are generally binding
> But employer has an OH&S obligation to
make sure that the employee is fit to
safely perform his duties
> IME is a reasonable and lawful direction
> Especially when employee is returning from a
serious work injury
> Employee fairly fired for refusing to attend
Scenario 6
Considerations
21

22. Managing sick and injured
employees on probation

23. > Employee commences new job
> Works two weeks over first two months
> Otherwise on paid and unpaid sick leave
> Discloses depression from last job
> Employer needs someone to do work
> Employer wants to dismiss employee
Scenario 7
The Failure to Disclose
23

24. > Unfair dismissal laws do not apply
> But general protections and equal
opportunity laws do apply
> Reason for dismissal:
> Poor performance/misconduct?
> Failure to declare illness?
> Temporary absence?
> Disability?
Scenario 7
Considerations
24

25. Proactive measures

26. > Job Task Analyses
> Prior injury declarations
> Pre-employment assessments
> Job strength/flexibility programs
> Mandatory health assessments?
> Voluntary health programs
> On-site therapy
Proactive measures
26

27. Lessons

28. > Confirm an employee’s capacity to
perform inherent requirements
> Probation period does not excuse
discrimination
> Be careful about challenging medical
certificates
> Seek more information from GP and/or
employee first
Lessons
28

29. > Ensure independent medical
assessments are necessary and relevant
> Encourage proactive health measures at
your workplace
> Be careful when disciplining ill and injured
workers
> Obtain advice first!
Lessons
29

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