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December 2021

Dangers of dismissing an employee with a temporary illness or injury

Dangers of dismissing an employee with a temporary illness or injury

The Case

Rezaeifard v Green Leaves ELC Pty Ltd T/A Green Leaves (2021)

Green Leaves ELC Pty Ltd T/A Green Leaves (Green Leaves) employed Ms Rezaeifard as an assistant educator in its early learning centre. Ms Rezaeifard provided a medical certificate evidencing back issues and requested to work in the older children’s rooms rather than float across rooms, due to the back pain she experienced while carrying the younger children.

Green Leaves organised a functional assessment of Ms Rezaeifard, which confirmed she had reduced function. The assessment recommended task work restrictions, including prohibiting Ms Rezaeifard from lifting a child weighing more than 10 kilograms. Green Leaves determined it could not accommodate Ms Rezaeifard’s restrictions and dismissed her on the basis that she was unable to perform the inherent requirements of her job.

Thereafter, Ms Rezaeifard underwent a CT scan of her back, and provided a letter from her doctor stating that she had no major back issues and that her pain was under control. Ms Rezaeifard requested that on this basis, Green Leaves reinstate her. Green Leaves refused.

Ms Rezaeifard filed an unfair dismissal application in the Fair Work Commission (FWC).

The Verdict

The FWC held that:

  • the dismissal was unfair;
  • if Ms Rezaeifard could not perform the inherent requirements of the position and no alternate work was available, Green Leaves should have placed Ms Rezaeifard on unpaid leave for 3 months and then reviewed her condition;
  • reinstatement was inappropriate given the functional assessment indicated Ms Rezaeifard had ongoing health and safety risks working for Green Leaves; and
  • 8 weeks of compensation was appropriate.

The Lessons

Section 352 of the FW Act provides protection to employees who are absent from employment due to a temporary illness or injury. Employers must ensure they allow appropriate time to enable a proper assessment of an employee’s illness or injury, and an opportunity for improvement, while providing, if possible, reasonable adjustments to enable the employee to perform the inherent requirements of the job.

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