What should you do if an injured employee is unable to return to their pre-injury position?

In late 2018, the Fair Work Commission found that Pilbara Iron Company (Services) Pty Ltd’s (Rio) dismissal of an employee, Ms Tito (Tito), on the grounds of ill health was not unjust, unreasonable or harsh after lengthy efforts were made to find her suitable alternative employment.

The Commission found that Rio’s deference to various medical opinions was prudent in the circumstances and that nothing more could have been done to accommodate the injured employee.

The facts in brief

Tito was a haul truck driver and had suffered two neck injuries while working at Rio, one in 2013 and one in 2016. The second injury rendered her incapable of driving haul trucks and Rio offered her temporary interim roles that would not exacerbate her condition while she recovered.

Rio monitored and supported Tito throughout this period with a view to assisting her to return to her pre-injury position. After several unsuccessful return to work plans in temporary roles, and limited improvement in Tito’s condition, Rio initiated a redeployment process to place Tito into an alternative position within its business.

In August 2018, Tito was offered a position that she was fit and suitable for, but she declined the position due to the conflict it would create with her parental responsibilities. Following this, Rio dismissed Tito on the grounds of her ill health and she brought an unfair dismissal application to the Fair Work Commission.

Was Tito’s dismissal ‘harsh, unjust or unreasonable’?

Applying s 387(a), deputy president Beaumont formulated the test as whether, at the time of Tito’s dismissal, her capacity was such that she could not meet the inherent requirements of her pre-injury position. The essential requirements of the job included driving haul trucks for long periods of time.

Both sides held different positions on what the medical evidence inferred in relation to the likelihood that Tito could resume her pre-injury position. This was because there were multiple medical assessments of Tito and one report noted that it was ‘not unreasonable’ for her to undergo a graded return to work notwithstanding that such an undertaking would have a low chance of success.

Beaumont ultimately found a ‘commonality’ in all of the reports, which was that the medical evidence showed that Tito was not fit to perform the inherent requirements of her position, and that no reasonable adjustments could have been made to remedy this. Furthermore, Beaumont found that Tito was aware of, and agreed to, the final redeployment.

Although Tito held ambitions to return to her pre-injury role, Beaumont found that Rio was right to defer to the medical evidence when making any decisions regarding her employment.

Beaumont reasoned that “whilst a difficult decision to make, due to the potential economic and social impact it had on Ms Tito, Rio was obliged to put the health and well-being of Ms Tito first”.

Deputy president Beaumont also found that Rio followed its ‘Injury Management Work Practice’ and had staff that diligently sought to place her in an alternative position.

What can we learn from this?

In many respects, Rio’s handling of Tito’s situation was exemplary and there are several practices that employers should take note of when dealing with an ill or injured employee.

First, employers should have a comprehensive internal policy that deals with managing ill and injured employees. In this case, Rio were able to reference their ‘Injury Management Work Practice’ – and the steps they took to comply with it – to demonstrate that the procedures followed in effecting the dismissal were reasonable.

It is also important to note that there are no obligations on large organisations to have such a procedure. However, the wording of s 387 appears to imply that larger and better resourced organisations will be judged to a higher standard than smaller organisations in such situations.

Section 387 references ‘the size of the employer’s enterprise’ and the availability of ‘dedicated human resource’ staff in assessing the procedures adopted in effecting the dismissal. Accordingly, as the case demonstrates, creating and adhering to company policies can assist a Court or Tribunal in the fact-finding process for unfair dismissal matters.

Second, employers should maintain ongoing, clear and transparent communication with injured or ill employees. Rio’s staff consistently checked in with Tito after her injuries to see how she was feeling and progressing. This helped Rio create return to work plans for Tito that accommodated her medical needs. Importantly, Rio were also very transparent in flagging their intentions to end her employment if, after a flexible redeployment period, she was unable to find suitable employment in an alternative position.

One staff member initiated a ‘pre-meeting’ before the redeployment period commenced in order to better appreciate Tito’s skill set and preferences. Although Rio’s ongoing and transparent communication with Tito ultimately did not stop her from making an unfair dismissal application, the evidence Rio tendered in relation to such correspondence supported their position that the dismissal was not harsh or unjust.

Third, employers should safeguard due process in all relevant procedures. Rio delayed Tito’s redeployment period in order to properly investigate a complaint lodged by Tito’s support person. In doing so, they ensured that the dismissal took place after all internal grievance procedures were exhausted.

Employers must appreciate that the period immediately preceding a dismissal will be closely examined by the Commission. To mitigate the risk of unfair dismissal liability, considerations of timeliness and short-term cost should be secondary to the need of treating injured employees with a dignified approach that affords them with due process.

Abraham Ash is a partner and Samuel Westley is a clerk at Clayton Utz.