In a perfect world, or at least in the world of the workplace, employees would not be injured, or become incapacitated, or suffer work-related mental anxiety. But alas …

Despite best workplace practices, injury and illness remain a part of working life, affecting employees and employers in various ways. The wellbeing of the employee is paramount, and various government bodies and pieces of legislation are directed towards this.

In 2015 the NSW State Insurance Regulatory Authority (SIRA) took over from Workcover as the regulator responsible for the NSW Workers Compensation system. Safework NSW is the regulator responsible for workplace health and safety. While we are on a roll, let’s throw in the Fair Work Act 2009, and the Workers Compensation Act 1987.

There are other pieces to the jigsaw too, but you get the idea: it’s a complex area.

One quote we would like to toss into the ring at the outset is this one from the Fair Work Act 2009: ‘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.’

A long and winding road

It can be a long and winding road, just like the Beatles song. Without a map it can get confusing, so it pays to have professional help with navigation.

Many employees who are on workers compensation will be back at work in no time. Sometimes, the return may be assisted by an employer who can juggle things around to assist: a slightly different job, a chair to ease the difficulty of long hours spent standing.

What about redundancy?

Under some circumstances an employee may become redundant during an extended period of absence. It is important to know that the regulators take a dim view of a redundancy that is, shall we say, convenient. There may be genuine circumstances of redundancy however, such as a position that has been re-engineered with upgraded work practices or newer technology, and indeed it is timely that the old job disappears.

Where an employee is absent for an extended period, a new person may be employed to take up the position—let’s face it, the job still needs to be done. If it is likely that the original employee may eventually return to the position, but the new hire hasn’t been advised of this very relevant possibility, that may also constitute a breach of the law.

With all that said, it is possible to terminate the employment of an employee who is absent for an extended period. As you might expect, there are many requirements to be adhered to, including very specific time constraints.

It is imperative that clear advice is given to both employees and regulators along the way. Communication to the employee should be clear at every step. It may be that termination is the end result, but as several recent cases will attest, the aspect of process is absolutely crucial.

That process is well known to us. Equally, it is important to have sound workplace practices regarding injury response in place before the event, as well as after it. We can help there too.

It is unfortunate enough that an employee is unable to work, make sure that you, the employer, don’t end up in legal sickbay as well.