Employer Liability and Workers Compensation | ACT

Background

It is a fact that some employees who receive workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) do not return to work and, unless they have resigned or retired, remain on the books – employees of an Australian government department or agency (Agency). Most Agencies will have employees on the books that are in receipt of workers’ compensation and who have not actually attended work for years or even decades. Over time these employees are forgotten by all except payroll.

But what does an Agency do when one of these employees loses their entitlement to workers’ compensation? They are still employees of the Agency and have all the rights of other employees, notwithstanding that they have not been sighted or spoken to in years.

There are three options available to an Agency in these situations. The first is to do nothing, the second is to return the employee to work and the third is to sever the employment relationship. None of these options is without risk.

What should you do?

In a public service climate where every FTE counts, the days where employees such as these can be forgotten and put on Leave Without Pay Not to Count as Service until death us do part are long gone. Managers no longer have the luxury of doing nothing. So if you can’t do nothing, what should you do?

The first step in managing one of these difficult HR matters is to develop a strategy. Generally speaking, the strategy should be developed in consultation with the ‘owning’ area or manager and HR. Informal legal advice could also be sought at this stage. Relevant considerations in developing a strategy might include:

  • the amount of time the employee has been out of the workforce;
  • the employee’s known skills and previous experience;
  • the needs of the Agency;
  • the skills of the owning area in managing a possibly complex return to work;
  • the amount of paid leave an employee has owing to them;
  • possible redeployment options within and outside the Agency; and
  • the availability of redundancies.

Agencies should be aware that any strategy must comply, and be able to be seen to comply, with the Agency’s enterprise agreement and employment policies and guidelines, and relevant legislation such as the Public Service Act 1999 (Cth), Fair Work Act 2009 (Cth), Work Health and Safety Act 2011 (Cth) and Disability Discrimination Act 1992 (Cth).

The next step is to simply have a conversation with the employee and find out what their intentions are. Given the length of time the employee has been out of the Agency, this conversation can appropriately be handled by an HR specialist or alternatively, their prospective manager. Who is chosen will depend on their experience and ability to engage in what could be a difficult conversation – particularly if the employee has not had contact with the Agency for some time.

In some situations resolution will be easy to achieve and mutually beneficial. In others, a difficult HR situation may arise. Potential problems include entitlement-driven behaviour, disruptive and unproductive employee conduct and, in redundancy scenarios, arguments about constructive dismissal.

Where an employee chooses not to voluntarily resign or retire, the Agency will need to manage a return to work scenario conducted in accordance with its policies and procedures. At a minimum this should entail a thorough Fitness for Duty assessment with an Independent Medical Examiner (IME) in conjunction with the employee’s treating practitioners. The fitness for duty should identify the employee’s:

  • current medical conditions;
  • their ability to meet the inherent requirements of their substantive position;
  • any reasonable adjustments that should be made so that they can meet the inherent requirements of their substantive position;
  • any other medical restrictions; and
  • a proposed graduated return to work schedule.

Invalidity retirement should also be considered at this stage.

The outcome of the Fitness for Duty assessment will inform the next steps available to an Agency.