HBA Consulting takes a systematic approach to HR planning, structural, functional and performance reviews and continuous improvement opportunities. Our approach is underpinned by a proven and holistic HR Practice Area model, that is built around 9 elements.
The first two articles in this series looked at the HR Practice Areas of Workplace Health and Safety and Recruitment and Placement. This month we look at a recent case before the Fair Work Commission, that brings into focus interaction between three practice areas Workplace Health and Safety, Industrial Relations and Culture and Values. The case highlights how a failure to carefully work through, in a holistic way, all the elements of an employees circumstances has resulted in the Commission expressing dismay at the failures of the employer in discharging their obligations to the employee, and the Commission has ordered reinstatement of the employee.
Dorris Maharaj v Northern Health  FWC 2997 (20 June 2017)
The FWC has reinstated a nurse who was dismissed by her employer while recovering from a serious car accident and a work-related needle-stick injury. In its decision, the Commission expressed its dismay at the hospital's failure to inquire about the ability of the nurse to return to her previous role before dismissing them.
The nurse, who had worked for the employer - Northern Health - for 17 years, terminated her last year because she had been away from work for 16 months, based on their assessment that she was allegedly unfit to perform her pre-injury duties.
Commissioner Michelle Bissett criticised was clear in her criticism of the senior management of Northern Health, for neglecting to tell the nurse it was considering her future before making their decision.
Commissioner Bissett said "I must express my dismay that an organisation of that size, with its array of specialist human resources staff, did not think that [the nurse] should have been advised of what it was considering, nor given an opportunity to put anything to it prior to making the decision to send the letter terminating her employment. The Commissioners comments related to an approach which saw the senior management group meet to discuss the nurse's case in September, noting there was no indication of when she might resume her duties, and then after discussion lasting no longer than 15 minutes, decided that action to dismiss her should begin. A dismissal letter was issued to the nurse on September 14.
Commissioner Bissett accepted Northern Health failed to make inquiries into the nurse's ability to return to work at the time of the dismissal, despite contact from the nurse's return to work co-ordinator, who sought to discuss a return to work plan. This contact was, critically, not reported to the senior management group who made the dismissal decision. As a result, the Commission concluded that the employers decision to dismiss the nurse was unreasonable.
Commissioner Bissett said Northern Health had no basis on which to conclude that the nurse was unable to perform her pre-injury job, or that she was likely to have incapacity into the foreseeable future. The Commissioner said that "By failing to engage in any discussion with respect to a return to work, Northern Health has seemingly abrogated its responsibilities, and noted that even if there were a valid reason for Northern Health to dismiss the ICU nurse, "the substantial procedural deficiencies would be a major factor in deciding if the dismissal was harsh, unjust or unreasonable". A breach of s5 of the Disability Discrimination Act was also found.
The Commissioner reinstated the nurse and said Northern Health must take the necessary steps to ensure the smooth integration of the nurse into the workplace.
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