Employment and Migration Blog

Psychological injury and return to work

Posted by Stephen Booth, Lisa Qiu on 12 Nov 2015

The laws in relation to injured workers make it clear that employers cannot terminate the employment of an injured worker, within certain time periods, because they are injured. Doing so may be seen as adverse action, or discriminatory, or may be an offence under the Fair Work act or workers compensation legislation.

So what do you need to do when an employee is injured at work?

The basic obligations are to notify the insurer of the workplace injury, comply with requests for information from the insurer, and cooperate with the insurer and worker to assist the worker return to work as the earliest date possible.

But return to work can be difficult if the employee’s injury is psychological and allegedly arose out of unreasonable workplace conduct such as bullying and harassment. Frequently, workers who are on workers compensation or prolonged sick leave because of a psychological illness arising out of work, are not keen to return to their prior employment precisely because they say doing so will exacerbate, rather than assist in the treatment of, their injury.

However, employers still have an obligation to support a return to work, and it is only when all reasonable options for this are exhausted (including addressing the allegations of bullying and harassment if there is any substance to that allegation) that an employer can look at termination of employment on the basis that the employee simply cannot return to work. 

As an employer, you may want to proceed to an exit strategy, but you need to be careful about forcing the pace on this because of the obligation to encourage return to work, and to avoid adverse action and so on. For example, if an employer forcibly proposes a return to work that is not agreeable to the injured worker, the injured worker may believe they have no choice but to resign, then allege that there was a constructive dismissal, and bring a claim for unfair dismissal. This is what happened in the recent case of Tania Tresize v MAX Solutions Pty Ltd (2015).

Ms Tresize was receiving workers compensation benefits due a psychological injury allegedly caused by bullying and harassment in the workplace. Her employer wrote to her to discuss a return to work but the terms of the return to work plan weren’t agreeable to Ms Tresize. After being away from work for two years, her employer notified her that if she continued to ignore their requests to discuss a return to work, they may have to take disciplinary steps including terminating her employment. She resigned, but alleged that her resignation was in fact a constructive dismissal, as she felt the employer had left her with no other choice.

Her subsequent unfair dismissal claim failed when the Fair Work Commission held that there were other options open to her that could have enabled her to continue her employment (such as responding to the process) and therefore her resignation was in fact a resignation, and not a constructive dismissal.

If you want to find out more about managing injured workers, contact our Employment Law Team: