In this Employment Update we deal with the often vexed question of “temporary” absence and the three (3) month period referred to in the Regulations to the Fair Work Act.

The Fair Work Commission has considered the meaning of a “temporary” absence in two recent unfair dismissal decisions, both heard by Commissioner Jennifer Hunt.

Both decisions indicate that the Commission will be taking a conservative approach moving forward. That is, employers must not dismiss an employee due to an illness or injury until all paid leave entitlements have been exhausted and the employee has been absent on unpaid personal (sick) leave for at least three months.

Whilst the cases have different backgrounds, the guidance for employers and key takeaways are similar.  As such, this Employment Update relates to one of the cases Manjkumar Pradhan v Amcor Flexibles (Australia) Pty Ltd.

Background

Mr Pradhan suffered a workplace injury in around September 2019. His workers’ compensation claim was accepted, and he was placed on a suitable duties plan.

On 22 September 2020, Mr Pradhan and his employer, Amcor, were notified by WorkCover that Mr Pradhan’s ongoing incapacity was no longer the result of his employment, but rather, was the result of a pre-existing condition.

Due to his medical condition, Mr Pradhan was severely limited in the amount of productive and efficient work he could perform. He was not useful to Amcor as he was unable to regularly climb ladders and stairs, which was a requirement of the role.

Instantly upon becoming aware of WorkCover’s decision to cease Mr Pradhan’s claim, Amcor decided it could no longer accommodate Mr Pradhan’s restrictions. It was found that from one day to the next, Amcor dropped Mr Pradhan “like a hot potato”.

Mr Pradhan exhausted his accrued personal (sick) leave, annual leave and long service leave. He had been on unpaid leave for a period of four weeks when Amcor terminated his employment due to his incapacity to perform the inherent requirements in the role in which he was employed.

Mr Pradhan filed an unfair dismissal claim.

What is a “temporary” absence?

The Commission assessed the meaning of “temporary” absence in relation to the Fair Work Act 2009 (‘the Act’).

The Act and the Fair Work Regulations 2009 (‘the Regulations’) contain protections for employees who are temporarily absent from work due to illness or injury.

Under the Act, employers are prohibited from dismissing temporarily absent ill or injured workers if they provide evidence for the reason for their absence as defined in the Act.

According to regulation 3.01(5), an absence for illness or injury will not be a ‘temporary’ absence and will not be protected if:

• the absence extends for more than three months, or the total absences over the course of 12 months exceed three months; and
• the employee is not on paid leave for the duration of the absence.

Judgement

The Commission confirmed that Mr Pradhan was temporarily absent from work for the purposes of regulation 3.01, at the time of his dismissal. Despite the duration and severity of Mr Pradhan’s injury, Commissioner Hunt stated that it was incumbent on Amcor to permit Mr Pradhan time to see if he could recover from his injury, within three months of his unpaid leave commencing.

Commissioner Hunt stated the temporary absence protection is entirely fair, as employees will, at various stages of their working life have to take time off work to deal with various illness or injuries.

Even though Mr Pradhan did not lose income as a result of the dismissal (as he was unfit to work), he was awarded compensation equivalent to eight weeks’ pay. The Commissioner stated that it was appropriate to award compensation to discourage Amcor (or another employer) from leaping to dismissal in respect of an employee who is unfit to perform work due to an illness or injury.

Guidance for employers

The Commission provided the following guidance to employers, who are faced with managing an employee who has been medically certified as unfit to perform the inherent requirements of the role in which they are employed:

1. inform the employee that the employer has taken the view they cannot safely perform the work and there are no other roles availability for them to safely perform, and all avenues of reasonable accommodation have been exhausted;
2. allow the employee to exhaust all paid leave, and place the employee on unpaid personal leave;
3. maintain regular contact with the employee, and as the period of three months’ unpaid leave draws near, invite the employee for a discussion to advise that the employer is considering dismissing them once the unpaid leave has gone beyond three months; and
4. consider any modifications or options for redeployment prior to dismissal.

NOTE – The above guidance is general in nature and should not be relied upon as legal advice. Employers should seek advice on a case by case basis. There are often discrimination and potential general protections factors to also consider.

Key takeaways   

1. Breaches of the temporary absence protections are unlikely to be tolerated by the Commission.
2. Employers must allow employees to exhaust paid leave entitlements and have three months’ unpaid leave, prior to the employer contemplating dismissal due to the injury or illness.
3. Employers should give serious consideration to available modifications and redeployment options, prior to dismissal.
4. The Commission may order compensation for an employee who has been unfairly dismissed in breach of the temporary absence protections, even where the employee has not lost any income.

Managing ill or injured employees is an incredibly complex area of employment law, which traverses a number of pieces of legislation.  We strongly recommend that if you require advice to manage an ill or injured employee, you contact one of our experienced Employment Lawyers.