Guest blogger – Belinda Hapgood

My employee has a long term medical condition – how do I manage their role? 

Many employers are often left struggling when an employee develops a serious or (in some cases) terminal illness. One of the issues may be the extent of support the employer can provide to the employee, particular when there is a need to maintain ongoing performance of that particular role. A particularly challenging issue for employers can be where to draw the line in terms of holding a role open for someone who has been unable to work for an extended period of time.

A recent Federal Circuit Court decision has considered the issue and provided some guidance to employers who might act to dismiss a worker with long term medical issues. We note that the case concerned an employee who had developed cancer. There is no suggestion that the illness was caused by his work.

The employee, Mr McGarva, was absent from work, on unpaid leave, for 10 months. Mr McGarva had kept in contact with his employer as to his progress and was looking to return to work in the coming weeks.

When Mr McGarva advised his employer that we would be able to return to work in 2 to 4 weeks, his employer responded with a letter terminating his employment. The employer relied upon the fact that Mr McGarva had taken an extended leave of absence, giving them no choice other than to terminate his employment.

Mr McGarva brought an adverse action claim against his employer. Adverse action is defined in the Fair Work Act, but particularly (and relevantly for our purposes) does not include any action that is authorised under the Fair Work Act. On this basis, the employer resisted Mr McGarva’s application stating that under the Act they were entitled to dismiss him under section 352. Section 352 states that “an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the Regulations”. Mr McGarva’s illness was not one “prescribed by the Regulations” as it was longer than 3 months. Therefore, under section 352 of the Fair Work Act, Mr McGarva’s dismissal was lawful.

However, Judge Driver held that, even though the dismissal was authorised by section 352, this did not affect the adverse action claim.

Judge Driver held that Mr McGarva still had a claim under section 351 of the Fair Work Act, which prohibits adverse action because of a number of reasons, but most relevantly, a disability. Further, the fact that section 352 authorised the dismissal, did not affect state or Commonwealth discrimination laws which may hold that the dismissal was unlawful under those provisions.

Judge Driver’s decision did not finally determine whether the employer had in fact acted unlawfully, but on this particular point of law, the decision is very clear and explicit, which allows Mr McGarva to continue his claim in the Federal Circuit Court.

This is a timely reminder to employers that the Fair Work Act creates a number of causes of action for employees to pursue, particularly in conjunction with several pieces of legislation, both state and Commonwealth. For employers, this means that just because your actions are authorised under one section of the Fair Work Act, does not mean that those same actions won’t be a breach of other provisions in the Fair Work Act or other legislation. Employers must then take steps to ensure compliance with all provisions to protect themselves from claims being brought by employees.

Points to Note

  • When dealing with injured or ill employees, document interactions carefully and consider all medical advice as part of your decision making. Do not make assumptions about a person’s condition or ability to perform their role – get expert help from treating or independent doctors;
  • Always provide a fair opportunity to the employee to demonstrate their willingness and capability to return to the role, even if that requires you to undertake some adjustment to their position. For instance, do you need to provide access to accessible parking or bathroom facilities to an employee who has sustained a spinal injury outside of work?
  • If in doubt, seek specific advice as dealing with issues of capacity to perform a role inevitably involves considering a variety of pieces of legislation.
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