Q: I have an underperforming employee who has been working for me for 2 months. He has been given every opportunity to fulfill the requirements of the role, but he still remains unsuitable.

I have scheduled his probation meeting for this Friday. I have been told that today he is not coming to work as he claims he hurt his back yesterday afternoon at work. There is no evidence of this, and there is no incident report. He told his manager at 5pm that he “tweaked” his back, but he couldn’t properly explain the circumstances or why.

Can I dismiss an employee for unsatisfactory performance if he files a workers’ compensation claim? I will be challenging such a claim if it is made as I don’t believe it would genuine, but this is not the reason for the dismissal. My business is based in Victoria.

A: It will depend on the circumstances of the workers’ compensation claim.

If the worker has no capacity and is off work for a period of time, you have obligations under Victorian workers’ compensation legislation to keep the employee’s pre-injury position open for a total period of 52 weeks.

If the claim is for medical expenses only, there is less risk of breach of the workers’ compensation legislation.

However, you should also be aware that under the Fair Work Act 2009 (Cth) (FW Act), an employee can make an application for dismissal in breach of a general protection where it is alleged that the dismissal was due to a “temporary absence due to illness or injury”.

To defend such a claim, you must have documentation that the decision to terminate their employment was based solely on the employee’s poor performance.

If he does lodge a workers’ compensation claim, he might also allege the dismissal was in breach of a workplace right, i.e. the right to lodge a workers’ compensation claim.

Claims for breach of general protections provisions of the FW Act can be made irrespective of the period of employment, even if the period is less than 6 months.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Dismissal for current advice.