Managing ill and injured workers
Termination of employment
The purpose of an employee induction program is to provide new employees with the necessary information, tools, and motivation to help them adjust to the new work environment as quickly and safely as possible. Induction programs also give the employer the opportunity to encourage loyalty, commitment and enthusiasm towards the work and the enterprise.
Overview of induction program
A good induction program should:
- enable the employee to adapt to the job and the working environment quickly, ensuring productivity and reducing disruption
- establish regular and positive communication between supervisors and employees, therefore, maximising output and minimising misunderstandings
- provide certainty and contribute to confidence-building
- ensure employees are aware of safe work practices
- reduce staff turnover and associated costs.
The key elements of an induction program should include:
(a) General information about the organization
- company information, customers
- worksite tour, introduction to key staff
- job-related provisions, e.g. uniforms, protective equipment
- organisational policies/manual, including advice on smoking, zero tolerance of drugs & alcohol, misconduct, private phone calls, confidentiality
- location of staff notice boards
- location of staff lunch/common area, staff amenities, car parking, drinking water.
(b) Information about the job
- provide job description/duties and responsibilities
- outline performance and quality expectations and how monitored
- assign a workmate to provide information and assistance, check work and answer questions, make introductions to co-workers
- set out regular hours of work, overtime, flexi-time, lunch/tea breaks, daily rosters
- outline sick/carer’s leave - notifying, accrual, and medical certificates
- outline annual leave entitlements and how they apply
- any workplace committees, (e.g. OHS, staff committee)
- any social functions or company customs, (e.g. paying for tea and coffee, birthdays)
- any staff discounts or other benefits
- bonus pay system.
(c) Workplace Health and Safety and safe operation of farm equipment
- Occupational Health and Safety Policy and Procedures, (e.g. evacuation procedures, emergency exits and meeting points and where to find them
- location of particular workplace hazards
- first aid arrangements (e.g. first aid officer), incident reporting
- safe operation of equipment and emergency procedures (including machine emergency shut-off)
- ensure any required certification/qualifications are relevant and current (e.g. forklift license).
How long should an induction program last?
Some of this information may be presented verbally on the first day and may require only a general explanation at this stage. This does not include OHS requirements which must be provided to the employee before starting work and during their first shift. However more detailed information and/or where such information can be accessed should be provided within a day or two. For employees required to operate complex or a range of farm machinery (e.g. harvesting machines, tractors, forklifts, or packing equipment), the employer might consider a separate, dedicated session covering off on all OHS requirements.
At the end of the first day you should speak with the new employee yourself, or have the Supervisor take a few minutes to see if the new employee has any questions about the job or the conditions of employment. If performance or conduct is an issue, offer the employee advice, assistance or training to help them get it right. Listen to any genuine concerns and, where warranted, express confidence in the employee’s work and/or commitment.
Establishing effective performance management systems can have significant benefits for a business, leading to happier, more motivated and better performing employees. Employers understand that when issues concerning underperformance are not addressed and managed appropriately and sensitively, it can lead to unproductive outcomes that may affect the entire workplace.
What is poor performance?
Poor performance can be exhibited in a number of ways, e.g.:
- a failure to perform the duties of the position or to perform them to the standard required
- non-compliance with workplace policies, rules, procedures or employer lawful directions
- unacceptable behaviour in the workplace disruptive or negative behaviour/ attitudes that impacts on co-workers.
Underperformance is not the same as misconduct. Misconduct is serious behaviour such as theft or assault which may warrant summary dismissal. In cases of misconduct employers should seek specific advice about how to proceed before taking any action.
What are some reasons for underperformance?
There are many reasons why an employee may perform poorly, including:
- the job has not been explained properly or there’s been insufficient training in the job
- the goals/standards of the job, or workplace policies are not clear (or have not been set)
- interpersonal differences between employees or supervisor and employee
- a mismatch between an employee’s capabilities and the job they are required to undertake, or the employee does not have the knowledge or skills to do the job expected of them
- lack of feedback on their performance
- lack of personal motivation, low morale in the workplace and/or poor work environment
- personal issues such as family stress, physical and/or mental health problems or problems with drugs or alcohol
- cultural misunderstandings
- workplace bullying.
Dealing with underperformance can be challenging and confronting for employees and employers alike, but it does need to be addressed. Underperformance should be dealt with promptly and appropriately by the employer, as employees are often unaware they are not performing well and so are unlikely to change their performance.
Additionally, issues that are not addressed promptly have the potential to become more serious over time. This can have a negative effect on the business as a whole as it can affect the productivity and performance of the entire workplace.
How to manage underperformance
A consistent approach to performance management provides opportunities to address problems and generate effective solutions. A successful performance management process is one that supports the workplace culture and is accepted and valued by employees. Here is an easy to follow step by step guide to managing underperformance:
- on engagement, clearly identify and articulate to the employee both the duties of the position and the standard/s of performance expected within their role – e.g. key performance indicators within a position description
- set an appropriate probation or trial period during which the employee understands they are expected to learn the role
- identify and outline the specific issues or problems early with the employee
- determine how serious the problem is, how long the problem has existed, and how wide the gap is between what is expected and what is being delivered
- meet with the employee to discuss your concerns. It is important that the meeting takes place in private in an environment that is comfortable, non-threatening and away from distractions and interruptions
- the discussion with the employee should explain the problem in specific terms, so that the employee understands the scope of the issue, why it is an issue, how it affects the workplace, and what’s required to fix the issue
- the employee should have an opportunity to have their point of view heard and duly considered.
Key points for employers to remember when holding the meeting:
- talk about the issue and not the person
- explore the reasons why there is an issue
- clarify details and expectations
- stay relaxed and encouraging, and summarise regularly to check your understanding of the situation.
When working out a solution, the employer should:
- explore ideas by asking open questions
- emphasise common ground
- keep the discussion on track
- focus on positive possibilities
- offer assistance, such as further training, mentoring, flexible work practices or
- redefining roles and expectations
- develop a clear plan of action with the employee to implement a solution.
Keep a written record of all discussions relating to underperformance in case further action is required. Generally, it may also be used as evidence if legal action is taken about the matter. The employer should monitor the employee’s performance and continue to provide feedback and encouragement. If the performance issue has been resolved after counselling, this should be noted. More serious action may need to be taken if the employee’s performance does not improve including further counselling, issuing formal warnings, or if the issue cannot be resolved, termination of employment.
Termination of employment
If an employee’s performance does not improve to an acceptable standard, termination of their employment may be necessary. Employers cannot dismiss their employees in circumstances that are “harsh, unjust or unreasonable”. What is harsh, unjust or unreasonable will depend on the circumstances of each case. However, it is important to be fair to employees particularly when it comes to termination of employment. They should be given reasons for dismissal and an opportunity to respond to those reasons. It is advisable that an employer seeks advice before terminating an employee. For further information on termination of employment go to the termination of employment section on this page below.
Managing ill and injured workers
Managing ill and injured workers can be a tricky task as employment, workplace health and safety and workers compensation laws all overlap. Furthermore, there may be many stakeholders to deal with when an employee becomes injured at work. Communication can be difficult at times when emotions 'get in the way'.
Things to avoid when managing ill or injured workers
There is no one method for dealing with ill or injured workers
Develop a plan for dealing with workplace illness, injuries or absences
Employers need to determine which people in the business are to be involved in managing illness and injury issues. Other relevant stakeholders within the business, such as line-supervisors, need to be involved and aware of how to handle employee illness or injuries as they are the ‘front line’ when it comes to dealing with a situation when an employee is absent from work due to an illness or injury.
Risks in taking action on ill or injured workers
Protection from dismissal where employee temporarily absent from work due to illness or injury
Under the Fair Work Act 2009 (FW Act), an employer is prohibited from terminating an employee for a temporary absence from work because of an illness or injury of a kind prescribed by the Fair Work Regulations 2009 (FW Regs). An illness or injury includes a physical or mental disability.
A temporary absence from work is a prescribed illness or injury in accordance with the FW Regs if the employee:
provides a medical certificate or a statutory declaration within 24 hours of the commencement of the absence (or such longer period as is reasonable in the circumstances)
is required by the terms of a workplace instrument (e.g. a Workplace Agreement or Award) to notify the employer of an absence and substantiate the reason for the absence, and the employee complies with those terms, or
- provide the same documentary evidence as is required under the National Employment Standards (NES) to substantiate a period of personal/carer’s leave, (e.g. evidence that would satisfy a reasonable person that the leave is legitimate).
A temporary illness or injury is not a prescribed illness or injury where:
an employee’s absence extends for more than three months; or total absences, within a 12 month period, have been more than three months, regardless of whether the absences are based on a single illness or injury or separate illnesses or injuries.
An exception to the above point arises where the employee is on paid personal/carer’s leave for the entire duration, in which case the absence (or absences) can be longer than three months and still count as a temporary absence. However, paid personal/carer’s leave does not include an absence on paid workers compensation.
Further protection from dismissal under State workers compensation legislation
1. Protection whilst receiving workers compensation entitlements
Under the Workers Compensation and Rehabilitation Act 2003 (QLD) (WCR Act), it is an offence to dismiss an employee within the first six months of injury whilst they are receiving workers compensation entitlements.
2. Protection within 12 months of employee becoming unfit for employment
The WCR Act also prohibits an employer from dismissing an injured worker within 12 months of the worker sustaining a workplace injury. This only applies where the reason for the dismissal is solely or mainly linked to the employee’s unfitness for employment due to the injury.
Furthermore, the WCR Act provides an injured employee who is dismissed because of a work-related injury with a right to apply to the employer for reinstatement. The injured employee must apply within 12 months of the injury and produce a medical certificate stating that they are fit for employment. Where an employer refuses to reinstate such an employee, the Commission is able to order reinstatement.
Protection from discrimination
Under QLD anti-discrimination law (the Anti-discrimination Act 1991 (QLD)) and the FW Act, an employer is prohibited from discriminating against an employee on the grounds of their physical or mental disability.
If an employee’s disability is:
preventing them from performing the essential duties of the role for which they were employed, or preventing from performing the work in a safe manner, and
there are measures you can reasonably adopt to enable them to perform those duties, then
anti-discrimination laws may prohibit you from disciplining or dismissing the employee because of the unsatisfactory performance due to their disability.
Employer obligations in rehabilitating injured employees
An employer must make an effort to accommodate an employee who is unable to perform their job due to incapacity or disability, and assist an employee in returning to work after an injury, even if the injury was not sustained in the course of employment. An employee’s disability is only an issue if they cannot perform the essential and/or reasonable duties of their position – these are the genuine inherent requirements of a job.
Determining the ‘genuine inherent requirements’ of a role requires the consideration of:
the terms of the employee’s contract
the job description
the actual physical and mental tasks performed during the position, and
the nature of business.
Genuine inherent requirements of a position do not include a capacity to perform tasks or exercise skills that are desirable. However, genuine inherent requirements do include the ability to perform work safely – employees must be able to carry out their role without endangering themselves and other employees. An employee’s role does not have to permanently change to steer clear of liability for discrimination – the employee should be made aware that any change to their job is temporary. The WCR Act places this responsibility on the employer to inform the temporary replacement employee in writing that their position is temporary and that the injured employee has a right to return to work.
Obligations when an injury or illness is reported
Apart from the employer’s duty to notify WHSQ and WorkCover (depending on the seriousness of the injury), if the employee is likely to be absent from work due to the injury, the employer will need to gather sufficient medical evidence to determine the employee’s capacity to return to work. The employer will need to determine the following:
the extent of the injury or illness
the length of recovery time the employee will require
whether the employee will be able to return to their pre-injury duties
how the injury or illness will impact on the employee’s ability to safely perform the inherent requirements of their role
the measures, if any, to take to enable the employee to safely perform in the inherent requirements of their role.
The employer should then assess whether the medical information provided indicates that the employee will be able to return to work and perform their existing role (with or without support), or take on modified/light duties.
In relation to medical certificates, notice and evidence requirements under the FW Act, state that an employee:
must give notice regarding the illness or injury to the employer as soon as practicable (which may be at a time after the leave has started)
must also advise the employer of the period, or expected period of the leave.
If the employer requests, the employee must provide evidence (e.g. a medical certificate) that would reasonably satisfy the employer that the leave was taken for a permissible reason.
Finding out more about an employee’s medical condition
If an employer wishes to request medical information from an employee, the employer should:
- suggest the employee visits their doctor, obtains a written medical report, and consents to providing the employer with a copy, or
- Suggest that the employee authorises their doctor to telephone the employer directly (the employer should make a record of any discussion with a doctor and provide it to the employee)
- remind the employee that any personal information obtained will be kept entirely confidential. Inform them that it will only be used to determine what steps you might be taken to help them return to their pre-injury position. An employee may refuse to cooperate with an employer’s request for their medical details. If this happens, the employer can inform the employee that it is important that they cooperate as the information is necessary for the employer to carry out their occupational health and safety (OHS) and anti-discrimination obligations. Employers are entitled to access this information because they have a right to know whether an employee is able to perform the inherent requirements of their job.
Handling a performance issue arising from an alleged illness or injury
Handling a performance issue can become complicated if the employee’s health is a contributing factor to their poor performance. There are some important steps an employer should take when dealing with an employee whose performance may be affected by their health. Ultimately, the employer will need to determine whether the employee’s health is a contributing factor before acting on the poor performance with disciplinary measures.
1. Define what is unsatisfactory about the employee’s performance
The employer will need to identify which parts of the job the employee is not performing satisfactorily. At this point the employer will need to review whether the requirements of the employee’s role are essential and reasonable.
Role requirements defined as essential and/or reasonable could include:
meeting reasonable productivity and quality benchmarks
timeliness and punctuality
working reasonable hours consistent with the requirements of the business
interacting appropriately with other members of staff and relevant stakeholders (e.g. clients)
performing tasks safely.
2. Meet with the employee
During the meeting the employer should inform the employee which duties or tasks they are not performing satisfactorily. The employer must identify why the required performance is an essential part of their role and ask the employee if they have any personal issues that may be contributing to their poor performance.
Health as a contributing factor to poor performance
If the employee indicates their health is a contributing factor to their poor performance, the employer must explain that in order to have a better understanding of the employee’s health status, the employee will need to provide the employer with sufficient medical information. This information will help the employer determine;
the extent of the alleged injury/illness
the length of time required for the employee to recover, and
whether the alleged injury/illness prevents the employee from performing the inherent requirements of their role.
If the employee provides unclear or questionable information on their alleged condition and their doctor cannot clarify the employee’s situation, the employer can request that the employee undergo an examination by an independent doctor paid for by the business. An employer may wish to consult an occupational rehabilitation specialist. The employer should confirm the assessment provided by the specialist in writing and give a copy to the employee.
What if the employee refuses to cooperate?
If the employee again refuses to cooperate, the employer should inform the employee that they must provide evidence of their alleged health issue within a reasonable period. Depending on an individual’s situation, a reasonable period may be five working days. An example of where an employee may require a longer period to provide evidence could be where the employee indicates they have a doctor’s appointment in two weeks. In this case the employer should ask the employee to show evidence of the appointment.
If the employee continues to avoid the employer’s request, the employer may act on the performance issue alone and move to discipline the employee without considering the impact of their alleged health issue.
If an employee has a dispute with you, as their employer, or with a fellow employee, do you know how to manage it in a constructive and efficient way? Or do you bury your head in the sand? The Fair Work Act 2009 requires that all modern awards (which commenced on 1 January 2010) include a procedure for resolving disputes between employers and employees about any matter arising under the modern Award, the National Employment Standards (NES), or where applicable, a workplace agreement.
Why have a dispute resolution procedure?
In every business problems can arise from time to time between employers and their employees. A good dispute resolution process can help employers to maintain good relationships with their employees by dealing with workplace issues early before they escalate and begin to cause wider problems. Handling a dispute or employee grievance effectively at the workplace level can go a long way to avoiding the costs that would be incurred from an employee lodging a claim through Fair Work Australia or initiating some other form of litigation. Employees are also more likely to stay in a work environment where they feel their concerns are heard and are taken seriously by the employer, which leads to higher levels of staff satisfaction and better staff retention.
Straightforward and confidential
Employers and employees both need to feel confident that grievances will be addressed in a confidential, timely and fair manner. Dispute settling procedures, which provide a clear process to both employer and employee, are an essential tool in addressing grievances. A straightforward approach, allowing both sides a voice, and ensuring equitable treatment and fairness in managing the dispute are the underpinning principles of any grievance resolution process. Encouraging employees to understand and use the dispute resolution procedure will ensure that the dispute or grievance can be controlled and contained and dealt with quickly. A grievance policy should also include a form for recording the grievance, the process undertaken and the outcome at each level of the dispute.
What dispute resolution process applies to your business?
Businesses with a workplace agreement in place will have a dispute resolution process in their agreement which applies and must be followed. If there is no workplace agreement covering the workplace, the procedure outlined in the Horticulture Award 2010 will apply and must be followed.
Model process for dispute resolution
A good procedure will begin by quickly identifying the issue/problem and establishing the facts. If no solution is possible at the workplace level, the dispute can be brought into more formal arenas such as Fair Work Australia, where the dispute may be settled. A suitable procedure for dispute resolution is as follows:
- Employee(s) and/or any employee representative meet(s) with the employee’s direct supervisor to discuss the issue or problem.
- The supervisor listens carefully to the employee(s) (and/or their representative) and together they try to resolve the dispute in a reasonable way. If the supervisor and employee are unable to resolve the dispute or it is not appropriate that the supervisor deal with it (e.g. the Supervisor is party to the issue), the matter should be referred to senior management.
- Senior management listens to the employee’s concerns and attempts to resolve the dispute or refers the matter to more senior management. It is either resolved or referred to an independent body.
- The matter may be referred jointly or individually to Fair Work Australia to resolve the dispute
The Fair Work Ombudsman has more detailed information regarding effective dispute resolution in their Best Practice Guides available for free. Growcom’s Industrial Relations team can provide guidance and assistance in the management of disputes and the development of dispute settling procedures.
Termination of employment
Fair Work Australia (FWA) sets out specific rules and protections relating to termination of employment. These rules establish whether the termination of the employment was unlawful or unfair, the entitlements an employee may be owed at the end of their employment, and the requirements for making an employee’s position redundant. Persistent unsatisfactory performance, serious misconduct, end of a contract, or even just running out of work can mean terminating someone’s employment.
Termination of employment is when an employee’s contract of employment with an employer ends. This can be the employee’s decision as in resignation, or it can be the employer’s decision to terminate.
An employee has been unfairly dismissed if FWA is satisfied that all of the following occurred:
the person has been dismissed (i.e. they didn’t voluntarily resign)
the dismissal was harsh, unjust or unreasonable in some way
if the employer is a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code
the dismissal was not a case of genuine redundancy.
What is harsh, unjust or unreasonable?
FWA will take into account all of the following factors in deciding whether a dismissal was ‘harsh, unjust or unreasonable’:
whether there was a valid reason for the dismissal related to the employee’s capacity or conduct
whether the employee was notified of that reason and given an opportunity to respond
any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal
if the dismissal related to unsatisfactory performance by the employee, whether they had been warned about that unsatisfactory performance before the dismissal
the degree to which the size of the employer’s enterprise and the degree to which the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal
any other matters that FWA considers relevant.
What constitutes a genuine redundancy?
the employer no longer requires the employee’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise (i.e. introduction of machinery to replace manual labour)
the employer complied with any obligation in an applicable workplace instrument (e.g. award or agreement) to consult about the redundancy
there was no reasonable opportunity for the employee to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.
Who can make an unfair dismissal application?
An employee is eligible to make an application to FWA for an unfair dismissal remedy if they:
have completed the minimum employment period of 12 months of employment for a “small business” (i.e. fewer than15 employees) or 6 months for a large employer (15 + employees), and
are covered by a modern award or workplace agreement, or
are earning less than the high income threshold ($113 800 from 1 July 2010).
Apart from the above requirements, a casual employee can make an unfair dismissal claim if they were employed on a regular and systematic basis over the required period set out above, and had a reasonable expectation that their employment would continue.
What if a claim is made against me?
You will be notified by FWA when an employee lodges an application for unfair dismissal remedy. FWA will check the application to see if it’s complete and valid, but you should do the same to check the facts and nature of the claim. FWA will arrange a conciliation meeting to assist both sides to resolve the matter by agreement. If a resolution cannot be reached, FWA will arbitrate the matter. In this instance, any decision made by FWA is binding on all parties. If FWA finds that the dismissal was unfair, you can be ordered to:
Should an employee be given notice of termination?
Generally, an employer must not terminate an employee’s employment unless they have given the employee written notice of the day of termination, or payment in lieu of that notice. The amount of notice is based on the employee’s length of service with the employer. The NES sets out notice requirements.
Employee entitlements on termination
When an employment relationship ends, employees should receive the following entitlements in their final pay:
any outstanding wages or other remuneration still owing
any payments that are being made in lieu of notice of termination by the employer – this is generally between 1-5 weeks pay, depending on the age of the employee, whether they were a shift worker, and how long they had been employed on a continuous basis by the employer
any accrued annual leave and long service leave entitlements
any severance pay entitlements if the employee has been made redundant and the employee has an entitlement to redundancy under legislation, an award or a workplace agreement.
Unlawful termination of employment is when an employee is dismissed by their employer for any of the following reasons:
a person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin
temporary absence from work because of illness, injury, or parental leave
trade union membership or non-membership
participation in trade union activities outside working hours
seeking office as, or acting as a representative of employees
temporary absence from work to engage in a voluntary emergency management activity
filing a complaint or participating in proceedings against an employer.
The industrial relations information provided is accurate to the best of our knowledge at the time of publishing.