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Letter to Employee Concerning Incapacity

Version 1.1 Updated 31 Aug 2017
Correspondence Separation

Who can use this correspondence?

This correspondence can be used by all employers.

Commentary

When seeking to use and adapt the letter to the particular circumstances of the ill or injured employee, you should be aware of a range of issues.

The draft template letter is necessarily general. The facts surrounding each employee’s illness or injury will be different. Accordingly, you may need to include additional background information (such as previous meetings or discussions about the employee’s illness or injury) in the letter.
 
You must ensure that any reference in the letter to paid and unpaid personal leave and the provision of medical certificates etc complies with the employer’s personal leave policy (if any) or the provisions in any industrial instrument that may apply to the employee’s employment — such as a contract of employment, an award or enterprise agreement.
 
You will need to obtain the employee's authority and provide this authority to the employee's doctor to obtain a medical report for the purpose of assessing the employee's ability to perform the inherent requirements of the pre-injury position.
 
If the illness or injury is work-related, you may need to seek legal advice regarding your obligations under the relevant workers compensation legislation. You may also need to discuss with your workers compensation insurer any previous medical reports obtained by the insurer about the employee's medical condition. You may need to obtain the employee's consent to obtain access to these medical reports.

Letter template

Previous meetings:
 
The letter commences with a reference to previous meetings with, or correspondence to, the employee about the employee's absences from the workplace due to illness or injury. You will be able to insert information which is relevant to the employee into the letter.

Accommodation:

The letter then outlines the accommodations (if any) the employer has made so far in relation to the employee’s illness or injury. Such accommodations could include, for example:

  •     the provision of paid and unpaid personal leave;
  •     allowing the employee to take annual or long service leave entitlements;
  •     offering the employee a temporary suitable duties position;
  •     making modifications to the duties undertaken by the employee in their current position or how they are carried out; or
  •     providing the employee with access to the employer’s Employee Assistance Program counselling service.


There is provision for you to insert other types of accommodations if applicable.

The employer’s obligation to accommodate the employee will depend on the particular circumstances which arise and whether or not the illness or injury is work-related. If you are uncertain as to your obligations to provide accommodations, you should seek legal advice.

Personal leave exhausted:

The letter also includes an ‘optional’ paragraph in the event the employee has exhausted the employee's entitlement to paid persona leave and is currently taking unpaid personal leave.

Employee absent from workplace:

If the employee is currently absent from the workplace, the letter outlines the length of time the employee has been absent from the workplace. Generally speaking, the greater period of time that has elapsed since the employee was last at work (or the cumulative amount of personal leave taken by the employee) the stronger the employer’s position will be in the event the employer wishes to terminate the employment of the employee. However, this will depend on the circumstances and you should seek legal advice if you are considering terminating the employee's employment. If the time period of the absence from work or cumulative personal leave is relatively short, the legal risks such as an unfair dismissal, adverse action, unlawful termination, or a discrimination claim are more significant for the employer.

Particular care needs to be taken if terminating the employment of an employee on paid personal leave (including workers compensation). If you are uncertain of your obligations in this regard you should seek legal advice.

Medical certificate:

The letter outlines details of the medical certificate most recently provided by the employee to the employer. This medical certificate may or may not be a WorkCover medical certificate issued by the employee's treating doctor, depending on the circumstances leading to their illness or injury. The letter also includes an ‘optional’ paragraph which can be inserted if the most recent medical certificate does not specify a return to work date for the employee.

Employer's business needs:

The letter explains to the employee that whilst the employer regrets his or her illness or injury is continuing, the employer needs to make arrangements to operate the business in their absence.

Medical evidence

Before any decision regarding the employee’s employment status can be properly made by the employer without exposure to significant legal risks, it is important to gather all of the necessary medical evidence. There is an ‘optional’ sentence to include if the employer has insufficient evidence regarding the employee’s medical condition.

A primary reason for this is because the employer has a legal responsibility to ensure the safety of the employee and other workplace participants. The letter explains to the employee that the employer cannot allow the employee to return to work until an appropriate medical assessment has been made that the employee is fit to return to work.

Medical assessment:

In order to comply with its work health and safety obligations, the letter outlines that the employer requires the employee to undergo a medical assessment to enable the employer to assess the employee’s ability to undertake their pre-injury role.

The employee will be required to obtain the answers to the questions outlined in the letter from his or her treating doctor. If there is no treating doctor, you may consider inserting the name of a doctor appointed by the employer. It is appropriate that the employer pay for the medical report. It may also be appropriate to insert the name of a doctor appointed by the employer where the employer is not satisfied tha the information provided by the employee's treating doctor clearly clarifies the employee's ability to undertake their pre-injury role.

In order for the doctor to understand the employee’s position, the letter includes a paragraph which requires the employer to attach the employee’s position description and/or a list of indicative tasks performed by the employee, and an invitation to the doctor to attend the workplace for a site inspection of the area(s) in which the employee works, if the doctor so requires.

Authority:

Due to privacy laws, the employee needs to provide his or her authority  for the doctor to provide the report to the employer. Accordingly we have included a reference to an ‘Authority to Doctor’ attachment, for the employee to sign and return to the employer. A copy of the authority to doctor should also be provided to the doctor.

Refusal to attend medical examination or sign authority to doctor

There is a warning in the letter that a refusal to undergo the medical assessment or sign the authority to doctor form may result in the employer being unable to determine whether the employee can perform the inherent requirements of his or her position and accordingly, the employer will not be able to offer the employee continued employment.

Given the legal risks involved with this approach, it is recommended you seek legal advice before taking any steps to terminate the employee’s employment on this basis.

Options once medical report is obtained

The letter clearly explains to the employee the options that are available once the medical report has been obtained. The options are as follows:

  •     If the doctor certifies that the employee is able to safely perform his or her pre-injury position without any restrictions, the employee will be able to return to this position.
  •     If the doctor certifies that within a reasonable period the employee cannot safely perform his or her pre-injury position or cannot do so without restriction or without risk of further injury or illness, the employer will consider whether any ‘reasonable accommodations’ can be made to assist the employee to safely perform the position. If no such ‘reasonable accommodations’ can be made, the employer will consider whether there are any other vacant alternative positions available that the employee is skilled and capable of performing.
  •     If there are no ‘reasonable accommodations’ that can be made and no vacant alternative positions that the employee is skilled and capable of safely performing, the employer may have no choice but to terminate the employee’s employment. Given the legal risks involved, it is recommended you seek legal advice regarding what constitutes ‘reasonable accommodations’ by the employer (in the circumstances of the particular employee’s case) and the employer's options more generally, before the employee's employment is terminated. The employer is not required to create a position for the employee based on the tasks he or she can safely perform. The employer is not required to provide accommodations which would cause the employer an ‘unjustifiable hardship’. However, the employer is required to make 'reasonable accommodations'.


In addition, if the employee is on workers compensation you should comply with your rehabilitation obligations under relevant workers compensation laws. If you are uncertain of your obligations you should seek legal advice.

Legal risks

The following is a general summary of the legal risks that may arise in managing (including termination of employment) employees with illnesses or injuries (including non work-related illnesses or injuries):

  •     offence provisions in various State legislations prohibiting the termination of employment of an employee within a certain period of time of sustaining a workers compensation injury;
  •     reinstatement of injured worker provisions in various State legislations which enable employees to apply for reinstatement or re-employment after the termination in certain specified circumstances;
  •     unfair dismissal claims unde the Fair Work Act 2009 (Cth);
  •     unlawful termination claims under the Fair Work Act 2009 (Cth);
  •     adverse action claims under the Fair Work Act 2009 (Cth);
  •     disability discrimination claims; and
  •     breach of contract claims.


You may also wish to seek legal advice regarding the process for best managing these risks in the individual circumstances of each employee.

Whether all of the legal risks apply will depend on the individual facts of the situation applying to the employee and relevant legislation in the State in which the employee works. If you require further information regarding the precise legal risks that may arise in a particular situation regarding an employee, it is recommended you seek further advice.

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