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Dealing with ill and injured workers

Dealing with ill and injured workers


Safety law

Safety law throughout Australia imposes duties on employees to take reasonable care to prevent injury to themselves and others and comply with the lawful and reasonable directions of their employers (s25 OHS Act 2004). This requires an employee, whilst carrying out their job (Cosma v Qantas) to not do anything to injure themselves (a disclosure obligation around health and fitness for job), others (misconduct including bullying and is also a bystander duty to stop others) and comply with directions (policies, procedures and process). The key element is a definition and clarity of role. Reasonable care attaches to the job a person does for an employer as employees are employed to do the job (hence the law around redundancy).

Employers (s20-22 of OH Act), and by the attribution provisions of the OHS Act (s143-actual or apparent scope of employment–note importance of job definition and clarity), supervisors and managers, must do everything that is reasonably practicable (identify hazardsplant, physical or psychosocial, determine the risk of the hazard based on severity and frequency, and in order of risk and resources institute controls utilising the hierarchy of control) to provide a safe place of work (including having a system of safety plan, processes, education, supervision, monitoring and reporting) and monitor health (this includes having suitably skilled people to advice on health). This is a positive obligation to identify all hazards, and means supervisors and managers must form relationships with employees to apprehend employee risk.

Officers (s144 OHS Act) exercise reasonable care (based on decision making power and knowledge) to have a safe system of work. The officer can’t plead ignorance of known risks (mental health), has corporate duties that expand the obligation to what is the officer’s objective knowledge (Ss 180-185 Corporations Act 2001) and must be satisfied there is a system that deals with those risks.

Other law

Employers are expected by the courts to identify mental health risks in an employee and intervene (Burke v Suncorp but not discern it in the absence of objectively obvious observations Kubat v Northern Health), know what are the inherent requirements of the job (X v Commonwealth, Boags v Button, Ss375-378 Genuine and reasonable Discrimination Act 1977 (Vic) see separately Federal Discrimination Law) and determine whether employees are fit for the inherent requirements of the job at all times (monitoring health), and if not, what are the reasonable adjustments (Ss368-374 Discrimination Act 1977(Vic) – see separately Federal Discrimination Law). An employer’s obligation is then to disaggregate the injury/illness from what an employ can do and adjust the management of the employee and create a plan to manage the problems (Victoria v Grant). If a person is not fit for the inherent requirements for greater than the temporary absence provision of the Fair Work Act 2009 (Ss352,772(1)(a), FWR’s 3.01 and 6.04 – note failure to notify in accordance with NES or industrial instrument 3 months not apply), and the employee is unable to undertake the job now, in the future and with reasonable adjustments, the employer may terminate using a three step process (Stergioti v Toyota). However it must be based on the employer’s evidence (Ramsey v Blackadder) not presumed (Kinnane v DP World) and be cautious of ignoring the employee’s medical advisors (Marshall v The Commonwealth).

Medical certificates and declarations

The NES under the FWA (Ss96, 97 and 107) prescribes the statutory obligations around personal leave and non-compliance with these provisions (or other industrial instruments) negates temporary absence provision. Compliance with NES and industrial instruments around personal leave presumes the person is unwell unless there is reliable evidence to the contrary (Anderson v Crown), fraud (Jeong v Alpha Flights) or an unexplained change in medical status to a past certificate–which permits the employer to direct a medical assessment (Grant v DPP). However, don’t simply disbelieve a certificate and act precipitously (Marshall v The Commonwealth) or judge too quickly (Cole v PQ Australia) nor act on scuttlebutt (Kinnane v DP World).

Medical assessment

The employer’s obligation to monitor health and provide a safe working environment means where an employer has reasonable grounds for suspecting an employee is not fit for the inherent requirements, they are entitled to give a lawful and reasonable direction to undergo a medical assessment (Ramsey v Blackadder). But generalised risk cannot be used to test everyone (TWU v Cement Australia). If the employee refuses the lawful and reasonable direction (after some attempts to get them to comply-Laviano v FWO or seeks to frustrate the process Columbine v GEO) such behaviour amounts to serious misconduct (FWA s12 and FWR 1.07(3)(c) under the FWA, breaches s25 OHS Act and is a fundamental breach of their common law duties. The assessment must only be in relation to the three elements of unable to do the job now, in the future and what are reasonable adjustments. Inability to be managed is unfit for the inherent requirements of the job.


Andrew Douglas, managing principal, FCW Lawyers


To hear more from Andrew and gain expert insights into dealing with mentally ill and injured workers, register for our upcoming Work, Health and Safety Intensive on Tuesday 13 March. This Intensive will cover a range of topics such as key developments in work, health and safety law, individual liability under work, health and safety law and more. For further information and to register, see here.

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