Generally, employers are prohibited from dismissing, or otherwise discriminating against, an employee who has taken personal/carer’s leave (whether paid or unpaid) or are otherwise absent due to illness (such as in cases of workers’ compensation). Relevantly, numerous pieces of legislation protect injured or sick employees:
- Section 232B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Workers’ Compensation Legislation), provides that within 12 months of an employee sustaining a workplace injury, an employer cannot dismiss the employee solely, or mainly, because the employee is unfit for work due to the injury;
- The Disability Discrimination Act 1992 (Cth) and Anti-Discrimination Act 1999 (Qld) (Discrimination Legislation) provide that employers must not discriminate against (or otherwise unfavourably treat) an employee who suffers from an illness/injury; and
- The Fair Work Act 2009 (Cth) (Fair Work Act), imposes restrictions on employers taking ‘adverse action’ (that is action which is to an employee’s detriment/prejudice, including dismissal) against employees who suffer from, or are temporarily absent from the workplace because of, an illness or injury.
Overall, these provide that an employer cannot dismiss or otherwise treat an employee differently because they are sick, injured, or absent because of an illness/injury. If employers are to contravene such provisions, employees may pursue action in the form of discrimination or general protections claims, and in respect of workers’ compensation, the regulator may prosecute an employer.
While the above does restrict employers, legislative exceptions do exist in the cases of requirements of a role, and prolonged injury/illness. With respect to the discrimination legislation, it is not unlawful for an employer to discriminate in the workplace if an employee cannot meet the inherent requirements or genuine occupational requirements of their role, even if an employer were to make reasonable adjustments for the employee.
In the case of Rivers v Burleigh Marr Distributions Pty Ltd and Ors  QIRC 070, an employer successfully raised the exception of inherent requirements, where an employee had been absent from work for a period of six months due to an anxiety disorder, and had supplied medical certificates to certify that they had no capacity to perform their role. The employer in this case requested the employee be assessed by a medical practitioner, who confirmed the employee’s inability to perform their role, and that no reasonable adjustments could be made.
While the discrimination exceptions exist, employers do need to be wary of the Workers’ Compensation Legislation and the Fair Work Act. With regard to the Workers’ Compensation Legislation, the restriction imposed exists for a 12 month period. Where an employee has made a WorkCover claim, it will remain unlawful to dismiss them due to injury for 12 months. Following the lapse of this period, however, an employer will not be liable to prosecution under this legislation.
The Fair Work Act, and its relevant regulations, provides that an ill or injured employee will not be considered injured/ill if their absence extends beyond 3 continuous months or a total of 3 months within a 12 month period, and the employee is not taking paid leave. Where an illness or injury ceases to exist, the employee will not be protected from adverse action/dismissal.
Overall, exceptions only arise when an employee is absent for an extended period, being 3 months or 12 months depending on whether an employee has made a WorkCover claim, or when an employee is unable to meet the inherent requirements of their role. Even in such cases, employers need to have assessed whether they could make reasonable adjustments to enable the employee’s return to work, or consider if the employee is on paid personal/carer’s leave.
It is important for employers to take due care and diligence when dealing with sick or injured employees. Numerous restrictions apply as to how a sick or injured employee can be treated, and a cautious approach is always best.
Where an employee continues to be sick or injured for a prolonged period of time, advice should be sought to assess the options available. Where an exception does arise, employers need be informed of the risks which may follow the taking of adverse action, even if such is defensible.
Prior to making decisions which will impact employees, it is always recommended that you seek appropriate legal advice. Saines Legal is a full-service employment law firm and are here should you require advice. Do not hesitate to contact us via firstname.lastname@example.org or (07) 3324 1055, to organise a consultation.
The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.
Authors Bradley Ellacott (Lawyer) and Nigel Saines (Principal)