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Legalwise School Law Conference: Managing Teaching Staff Returning from Maternity Leave, Long Term Sick Leave and Workers Compensation
- 1. Legalwise School Law Conference ManagingTeaching Staff Returning from Maternity Leave, Long Term Sick Leave and Workers Compensation Brett Wilson Partner 2 September 2015
- 2. Issues …… toConsider A return to work after: • Maternity Leave; • Long Term sick leave; and • Workers Compensation have unique issues, obligations and risks.
- 3. Objective ……. To providean understanding of: • Relevant legislation, Federal and State; • Rights and obligations of employees and employers on a return to work; • Common issues that arise; • Managing the process, practical tips; and • Litigation risks.
- 4. Relevant Jurisdiction ……. •In State schools the relevant legislation is Queensland: and • For Private Sector Schools and Colleges, which are constitutional corporations, or where the Queensland Government has passed Industrial Relations powers to the Commonwealth, the relevant legislation is Federal, or a mix.
- 5. Parental Leave ……. Relevantlegislation: • State Schools – The Industrial Relations Act 1999 (Qld) sec 16 – 38; and • Private Schools and Colleges – The Fair Work Act 2009 (Cth) sec 70 – 85.
- 6. Return after ParentalLeave ……. An employee may: • Request to return to work before the end of parental leave on either a full time, part time or casual basis; and • May request to extend Parental Leave, on one occasion, other than by agreement.
- 7. Return after ParentalLeave ……. An employee may: • Request to return to work on a part time basis on one occasion within 12 months; • Request must be writing and 7 weeks before leave ends; and • Must state part time is to care for child.
- 8. Return after ParentalLeave ……. The employer must give proper consideration: • To the employees needs and the impact of a refusal to permit request; • To the effect on the employers business, that is cost, staffing, efficiency and replacements; and • The employer cannot unreasonably refuse.
- 9. Return after ParentalLeave ……. The employer must give proper consideration: • To the employees needs and the impact of a refusal to permit request; • To the effect on the employers business, that is cost, staffing, efficiency and replacements; and • The employer cannot unreasonably refuse.
- 10. Return after ParentalLeave ……. The employee is entitled to: • Return to the position held immediately before starting parental leave; and • If part time or safe job before the Parental Leave, the full time position before taking up the part time safe job position
- 11. Return after ParentalLeave……. The employee is entitled to: • If the position no longer exists, then the employee is entitled to any other position that the employee is qualified to fill of the same status and remuneration; and • If such a position is available it must be offered.
- 12. Return after ParentalLeave ……. The employee is entitled to: • If a long terms casual whose hours were reduced due to pregnancy, a return to the hours normally worked before the reduction in hours.
- 13. Return after LongTerm Sick Leave ……. Employee has limited statutory rights: • Anti Discrimination legislation; • Unfair dismissal under the Industrial Relations Act and the Fair Work Act; and • General Protections, unlawful dismissal.
- 14. Return after LongTerm Sick Leave ……. Employee has limited statutory rights: • No guarantee of job back; • Nor a real obligation to keep job open after 3 months in 12 months sick leave; and • However watch discrimination.
- 15. Return after LongTerm Sick Leave ……. You need to consider: • Can the employee carry out the inherent requirements of the position? • Is the employee an Occupational Health and Safety risk?
- 16. Return after LongTerm Sick Leave ….. Reasonable Foreseeability of an Aggravation If you perceive that a risk exists that an employees work may aggravate their condition do something to manage that risk.
- 17. Return after LongTerm Sick Leave ……. How to manage, obtain: • A medical clearance from the employees medical practitioner; • If necessary your own medical opinion; and • A job risk assessment.
- 18. Return after LongTerm Sick Leave ….. Tort of Negligence If a person suffers injury as a result of another’s negligence the sufferer is entitled to compensation from the negligent party.
- 19. Return after WorkersCompensation … Relevant Legislation: • Workers Compensation and Rehabilitation Act 2003 (Qld)
- 20. Return after WorkersCompensation … Purpose to: • Ensure employees earliest possible return to work; and • Maximise employees functioning in the workplace.
- 21. Return after WorkersCompensation … Employer must: • Take all reasonable steps to facilitate rehabilitation to a suitable standard; and • If not practicable or reasonable must advise WorkCover in writing why not.
- 22. Return after WorkersCompensation … If not: • Employer will be required to pay all of WorkCover’s costs of rehabilitation plus a penalty.
- 23. Return after WorkersCompensation … An employer has an obligation: • To facilitate an employees rehabilitation back to work; • Not aggravate an employees condition; and • Not dismiss an employee because of the illness or injury.
- 24. Return after WorkersCompensation … An employee has an obligation: • To mitigate any damage; • Must participate in rehabilitation; and • Failure to do so could result in a creasing of benefits.
- 25. Return after WorkersCompensation … For an employer this involves: • A suitable back to work program; • Professional support when required; and • Any services approved by the insurer.
- 26. Return after WorkersCompensation … Suitable duties means duties regard to: • The employees incapacity and pre-injury duties and age education and skills; • Medical information; • Employers rehabilitation policies; • If duties are available at another location whether reasonable for employee to attend that location.
- 27. Common issues thatarise … • The employee whilst arguably able to perform their previous duties refuse to do so. • Employee requests unreasonable changes in work and working conditions. • You simply can’t facilitate the employees requests or WorkCover's requests
- 28. Common issues thatarise … • The employee can’t perform the inherent requirements of the position that they were originally employed to do, and there is no other position available. • The employee refuses to take part in rehabilitation.
- 29. Common issues thatarise … • Positions are made redundant and some employees are on parental leave, long term sick leave or Workers Compensation • An employee who returns to work is not performing or is guilty od serious wilful misconduct.
- 30. What are theRisks ….. • A discrimination claim for treating an employee less favourably due to their parental status or disability. • An unfair dismissal claim • A General Protections claim. • Action by WorkCover.
- 31. How to Managethe Risk ….. • Consult with the employee. • Document all considerations. • Gather as much external information as possible. • Facilitate the return to work as far as it is reasonable to do so.
- 32. How to Managethe Risk ….. • Don’t set people up to fail. • Analyse the work environment. • If it’s stress take into account where you are placing the teacher, think about it. • Monitor the teacher to ensure they are coping, physically and mentally.
- 33. How to Managethe Risk ….. • Don’t set people up to fail. • Analyse the work environment. • If it’s stress take into account where you are placing the teacher, think about it. • Monitor the teacher to ensure they are coping, physically and mentally.
- 34. Be proactive ….. •Consistent • Prompt • Confidential • Document the process • Seek advice • Use external authorities to assist
- 35. DISCLAIMER Please note thatthis Power Point and Presentation is not legal advice and the material has been altered to simplify the presentation and should not be relied upon in the provision of legal advice or for any other purpose.