Issue 3 - HBA News Series

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.

Background

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.

In short, the case highlights the need ensure that:

• The employers WH&S obligations are understood and followed from a legislative but also a employer of choice perspective. How an employer behaves, especially in relation to a decision to terminate an employee in circumstances such as those applying in this case, sends a message to current and potential employees about the culture and values of the organisation.
• The industrial obligations and potential risks are fully thought through and taken into account prior to any firm decision being taken on matters such as termination including potential breaches of core employment legislation such as those Acts dealing with discrimination.
• HR areas play a critical, specialist and a necessarily frank and fearless role in informing senior management of all dimensions of a matter, and that senior management takes the time to undertake due diligence inquiries before making significant employment related decisions.

To mitigate the risks associated with sensitive and complex termination of employment decisions, HBA recommends employers:

• Seek external independent HR and IR advice on complex or sensitive matters to enable them to formulate and deliver an approach that takes into account all of the key issues and risks;
• Review existing employment policies and procedures to ensure that they are contemporary and able to be understood and implemented consistently;
• Provide coaching to supervisors and managers in relation to how to best manage and resolve current employment issues within their work teams.

Why Employers (and especially HR) needs to ensure that all the bases are covered a Health sector example.

Dorris Maharaj v Northern Health [2017] 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.

A summary of the key points show that:

• Northern Health said the decision to dismiss the nurse was based on a certificate specifically stating she had no capacity to return to her employment between September 12 and October 10.
• It also said it had not received any communication from the nurse's rehabilitation provider to suggest she was capable of returning to her role, or that any adjustments were necessary. As a result, the employer felt it was entitled to conclude that the nurse was unfit to return to her pre-injury job and that the inability of the nurse to perform the inherent requirements was a valid reason for dismissal, and therefore it wasn't unreasonable to not explore the possibility of a return to work plan with the nurse.
• In response, the nurse said that Northern Health failed to undertake reasonable inquiries into her capacity to return to work, and that had it done so it would have discovered she was ready to resume in December 2016, and that at the time of her dismissal she had some capacity to work, with reasonable adjustment.
• Medical evidence obtained from a specialist occupation physician two months after her dismissal provided by the nurse, stated that she was ready to return to work on reduced hours that gradually increased over time to her pre-injury work levels.
• Finally, the nurse also claimed that the Disability Discrimination Act placed an obligation on the hospital to make reasonable adjustments and develop a return to work plan.

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.