Within the general protections of the Fair Work Act 2009 (Cth) (FW Act), there is a protection afforded to employees who are temporarily absent from work because of an illness or injury. Specifically, section 352 of the FW Act prohibits employers from dismissing an employee within the first three months of any absence from work due to an illness or injury.
The purpose of this protection is to recognise the inevitability that an employee might require time off work due to an injury or illness, for example, a broken bone or to recover from surgery, and to ensure that they do not lose their job for this reason.
Typically, a breach of this provision might amount to unlawful adverse action by an employer. However, a recent decision of the Fair Work Commission (FWC) has considered this protection in the context of an unfair dismissal application and found that such a breach can also amount to unfair dismissal under the FW Act (Rezaeifard v Green Leaves ELC Pty Ltd T/A Green Leaves  FWC 5905).
In this matter, the employee had been employed as an Assistant Educator at an early learning centre. At some point between July and September 2020, the employee had a discussion with the Operational Leader, about the employer’s recent decision to engage her as a “floater” across various rooms. The discussion centred around an issue with the employee and her back pain and the employee’s preference to stay in the older children’s room because it required less carrying of children.
On 11 September 2020, the employee was asked to stop working and undergo a functional assessment. The functional assessment confirmed that the employee had reduced functional capacity and recommended restrictions on a number of tasks such as squatting, downward reaching, lifting, and carrying.
A couple of days after this assessment, there was a series of discussions between the employee, the senior human resources manager and the centre director about the tasks that the employee was able to perform. Ultimately, on 18 September 2020, the employer determined that it was unable to provide the employee with a permanent role that met the restrictions outlined in the functional assessment. The employee was then dismissed as a result of her inability to perform the inherent requirements of her role.
Subsequent to the employee’s dismissal, the employee continued to seek medical advice about her back pain, including obtaining a medical certificate that confirmed that there were no major issues with her back and that the pain was under control. Following receipt of this certificate, the employee sought reinstatement in October 2020. However, the employer declined to reinstate the employee.
In determining whether the employer had a valid reason for dismissing the employee, the FWC had regard to the employer’s obligations under s 352 of the FW Act. It considered that the employer was required by law not to dismiss the employee and to permit the employee some time to see if she could recover from the injury. It said at :
“The appropriate process is to inform her that the Respondent has taken the view she cannot safely perform the work and there are no other roles available for her to safely perform, and she is on unpaid personal leave. A prudent employer would regularly be in touch with such an employee, and as the period of three months of unpaid leave drew near, invite the employee in for a discussion to advise that the Respondent was considering dismissing her once the period of unpaid leave had gone beyond three months.”
The FWC likened the protection to a “red light” which prohibits dismissal but warned that it is not an “automatic green light” once the three months passed. Rather, it is no longer a red light, and that discussions should occur at that time with the employee about their role.
The FWC found that the employer had failed to have any regard to the protection provided to the employee under s 352 of the FW Act. It noted the employee’s request to be reinstated shortly after the dismissal and found that “this is the very reason why [the employee’s] employment should have been live at that time”.
The FWC found that the employer did not have a valid reason for dismissal and the dismissal was therefore unfair. However, it decided against ordering reinstatement on the basis that it considered the employee to still be an ongoing risk in that type of employment and there was no satisfactory medical evidence to suggest otherwise. The employee was therefore awarded eight weeks’ compensation.
Lessons for employers
When managing employee absences because of illness or injury, employers (particularly human resources and managers) should be aware of the protection afforded to employees by s 352 of the FW Act. This protection should also be taken into account in any policies or procedures that set out best practice management of illnesses or injuries.
Any dismissal that is in breach of this provision may not only be considered unlawful adverse action but can also result in the dismissal being found to be unfair and can lead to reinstatement of the employee.
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