Two recent FWC decisions illustrate the importance of responding reasonably to the radically altered situation of an employee.
When a staff member is injured or faced with drastic changes in their personal life, it’s important that employers respond with kindness and empathy. However, as these two cases highlight, they shouldn’t have to bend over backwards.
Jack v Sigma Healthcare
In the first case, Ms Jack alleged her former employer, Sigma Healthcare, had unfairly dismissed her.
Jack was employed as a storeperson in Sigma’s distribution centre, where her role included strenuous physical work. In October 2017, Jack was injured in a non-work-related motor vehicle accident and commenced personal leave. She did not return to work.
From May 2018 onward, Jack obtained a number of medical certificates deeming her unfit for work, or fit for “suitable employment”.
In August that year, Jack met with Sigma’s HR partner. Possible alternative working hours and tasks accommodating Jack’s injuries were considered. However, at the time Jack was reliant on a number of medications, which meant returning to work would have been unsafe.
On 5 September 2018, Jack gave Sigma a certificate of capacity confirming that she had, “capacity for suitable employment”, although it was noted that her concentration was affected.
Three months later, Jack’s GP wrote to Sigma setting out a range of psychological difficulties Jack was suffering, including depression. The GP opined that Jack could “not perform any duties at that stage”.
Early in the new year, Sigma wrote to Jack informing her that it was, “seriously considering terminating [her] employment on the basis of [her] inability to perform the inherent requirements of [her] position.” Jack was invited to attend a meeting with the HR partner to provide further information before Sigma finalised its review. Over the next month, Jack’s mental health continued to deteriorate, including a major depressive order, and she informed the company, on her psychiatrist’s advice, that she was still unable to return to work until at least mid February.
On 18 January, Jack was informed that her employment had been terminated due to an “inability to perform the inherent requirements of her role”.
It fell to Commissioner Cirkovic to determine whether a valid reason existed for Jack’s termination on the grounds of incapacity.
Cirkovic noted that the questions to be answered were:
- Whether Jack, “was capable of performing the inherent requirements of her role as at the date of dismissal”
- Whether she, “would be able to perform the inherent requirements of her role at some time in the future”, and
- Whether there was, “some reasonable adjustment which could be made to her role to accommodate any current or future incapacity.”
A valid reason for dismissal?
Sigma submitted that Jack was unable to perform her pre-injury duties due to her physical and mental conditions.
Jack responded by arguing, among other things, that Sigma had “denied her a fair go”, and claimed the real reason for her termination was that a number of redundancies were impending within Sigma’s business, and Sigma wished to avoid paying her a redundancy package.
However, the FWC decided that Sigma had kept the position open for a reasonable amount of time (15 months) before terminating her.
The HR partner further stated that she had only become aware of the impending redundancies after Jack’s role was terminated. Cirkovic concluded Sigma had not tried to sidestep offering Jack a redundancy package.
Commissioner Cirkovic was satisfied that the medical evidence indicated Jack’s mental state meant her return to work in her pre-injury role with Sigma was “not foreseeable” and that Sigma wouldn’t have been able to make adjustments to accommodate for this.
Phillips v Integrated Medical Solutions Group (IMS)
In the second case, Ms Phillips, a 24-year-old medical receptionist, also alleged she had been unfairly dismissed.
Phillips was a full-time employee of IMS. In April 2018, Phillips’ mother became terminally ill, passing away in January 2019, and leaving Phillips to care for her 11-year-old sister. Phillips began a period of unpaid leave on 17 October 2018.
On 23 November 2018, Phillips met with IMS’s head of HR and alleged that she had promised Phillips she would “always have a job to return to”, and had agreed that when Phillips would return to work, she could work from 10:00am-2pm, Monday-Friday, instead of her usual hours of 8-6pm.
The head of HR told the Commission she had advised Phillips that this request was subject to the approval of the practice owner.
Three months after her mother’s death, Phillips advised the head of HR that she was prepared to return to work under the condition that her hours would be changed (as above), to allow her to drop off and collect her sister from school.
Phillips alleged she further advised the head of HR that she wished to take one week off work each school holidays to care for her sister, and three weeks off over summer – stating that she had suggested she could take these holidays as unpaid leave.
Countering this, the head of HR told the Commission that Phillips had informed her she would require all of the school holidays off work, and had not offered to take this as unpaid leave.
Phillips alleged that, during a subsequent phone call, the head of HR said, “we’re just trying to figure out what is best for you and whether that’s to terminate you or you resign your employment.” However, the head of HR denied that termination and resignation had been broached at this point.
The head of HR informed Phillips that IMS could not accommodate her requests. Instead, Phillips was offered to work from 8:30am to 2:30pm, Monday to Friday, and she would be required to apply for annual leave, as per IMS policy, for the school holiday periods. As a second alternative, Phillips was offered “casual employment on the standard terms.” She was also informed that she could return to work in her usual, full-time role.
Phillips still wasn’t happy with these options and kept returning to the verbal promise made to her by the head of HR when her mother first became ill. The head of HR, who was sympathetic to Phillip’s situation, outlined that there clearly was a position for Phillips, in fact she’d been given three different options, they just couldn’t operate around Phillip’s proposed hours.
If Phillips was unable to take on one of these options, the head of HR said IMS would assume that Phillips “did not intend to return to work”. On 2 May, Phillips was given until May 8 to respond if she wished to return to work.
On 8 May 2019, Phillips wrote to IMS stating, “please do not assume that I do not wish to return to work…” Phillips again stipulated that her family circumstances meant she was only able to work from 10:00am to 2:00pm, Monday to Friday, or potentially until 2:30pm “if that would help with the needs of the business.” When IMS pushed back on this again, and after some more back and forth, the head of HR wrote to Phillips confirming that her employment had come to an end on 17 May 2019.
The head of HR prepared a separation certificate at Phillips’ request, recording the reason for the separation as, “employee ceased work voluntarily”.
Phillips, however, did not agree that she had ceased her employment voluntarily – arguing that she had been dismissed at the practice’s initiative and had not resigned.
Commissioner Hunt, who was overseeing this case, noted that many emails sent by Phillips stipulated that she was available to work between 10:00am and 2:00pm only.
Hunt found that the practice had, “repeatedly, reasonably and professionally corresponded” with Phillips about the reduced working hours it could accommodate, and, alternatively, “invited Ms Phillips to return as a casual employee.”
As a result, Hunt found that there was no conduct on IMS’s part that amounted to a dismissal on IMS’s initiative. Phillips, it was found, “had a substantive job to return to and she chose not to accept the respondent’s reasonable and accommodating hours of work given her personal circumstances.”
Ultimately, Hunt felt that the practice had not been unreasonable in its refusal to meet Phillips’ requested hours and leave arrangements, and had responded appropriately to Phillips’ requests.
Lessons for employers
The first case offers a helpful outline of best practice when managing employees returning to work and ultimate termination of an employee who is no longer able to fulfill the inherent requirements of their role.
These are the two questions HR should ask in this scenario:
- What does the medical and other evidence tell us about the employee’s capacity and fitness for work, both now and into the future?
- Can the employee’s role reasonably be adapted to suit their incapacity?
Despite this, employers need to be mindful of the raft of other factors potentially weighing on their approach to an employee struggling with reduced capacity.
As Elizabeth Devine of Devine Law At Work explains: “Dealing with injured employees is one of the more complex areas of managing staff – not so much from an unfair dismissal perspective, but because it brings in work health and safety law, disability discrimination, general protections, workers compensation when it’s applicable. It has a whole raft of different aspects to it.”
As Devine explains, discrimination and general protections considerations might also be enlivened by cases such as that of Phillips.
Phillips’ case is illustrative of the importance of employers taking reasonable steps to try to accommodate an employee’s changed circumstances, in light of the business’s needs.
Perhaps most importantly, these cases demonstrate that the best approach is always to engage in frank and open dialogue with an affected employee, as well as:
- Offering alternative working arrangements that are reasonable for both parties.
- Affording the employee an opportunity to discuss suitable working arrangements.
- Advising the employee of decisions regarding their employment and affording them an opportunity to respond.
Because, as Devine says, “it’s better to be careful and reasonable than not – always.”
When staff are going through tough times, it’s important for managers to understand how to offer them the right support. Ignition Training’s short course, Having difficult conversations, can help to ensure communication is clear and professional.