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See how the employers treat illness in the workplace ....
This is a summary of an article by Kirryn West from People + Culture Strategies in the December 2011 issue of Strateg-Eyes: Workplace Perspectives
There are a broad range legal issues employers need to be aware of when dealing with occupational health and safety, privacy and discrimination. This article will outline certain obligations of an employer to an employee who has a serious illness, other employees and third parties. Given the seriousness of the illness and the potential for a broad range of legal risks attached to the situation, employers need to take a high degree of care and sensitivity to the situation.
Under occupational health and safety legislation, an employer has an obligation to an employee to ensure their safety as far as reasonably practicable. A breach of these obligations is likely to result if the employee contracts a serious illness in the course of their employment. The employer also has an obligation to provide notice where a notifiable or serious incident occurs. If an employer breaches their duty of care, the injured employee may be eligible to seek damages for the employer.
Workers compensation
Workers compensation is payable where an employee has suffered an injury causing incapacity arising out of or in the course of their employment. The definition of ‘injury’ is broadly defined.
Where it is possible a worker’s compensation claim could be made, an employer should contact its insurer and review its insurance policy as it may include additional obligations on the employer.
Return to work
An employer has an obligation to allow an employee who has recovered from a serious illness to return to work. However prior to returning the employee to work, an employer should obtain medical advice about the employee’s capabilities, management of the employee’s condition and any risks posed by the employee to co-workers or third parties.
Discrimination
An employer should take care to not discriminate against an employee at any stage on the basis of their illness. This is because both Commonwealth and state legislation prohibits direct and indirect discriminatory conduct on the ground of disability.
Termination of employment
Should an employee be unable to return to work, and there is no alternative work available or adjustments that can be made so that the employee can return to work, it is open to an employer to terminate the employee’s employment. However, care must be taken to ensure there is no breach of discrimination laws or the adverse action provisions of the Fair Work Act 2009 (FW Act).
In addition to the obligation to an individual employee, an employer also has an obligation to other employees and third parties.
Privacy obligations
Employers should be careful when informing other employees of the relevant employee’s serious illness as this may infringe privacy legislation. This is because the Privacy Act 1988 states that the personal information of a person cannot be disclosed unless that person consents to the disclosure or unless disclosure is necessary to prevent or lessen a serious imminent threat to life. Therefore, the employer should seek consent from the employee, before disclosing such information to third parties.
Occupational health and safety obligations
An employer should consider whether they have appropriate mechanisms in place to ensure the health and safety of employees against the risk of contracting the serious illness. This is particularly important should an ill/injured employee return to work, or to prevent the risk of the serious illness spreading.
A process of assessment should include:
· Hazard identification — including identifying the potential sources of the infection and identifying activities where hazards exist and potential means of transmission
· Risk assessment — including determining the risk of the disease being contracted. This should include looking at the availability of personal protective equipment, access to relevant medical first aid services and individual risk factors for each worker, and
· Risk control — developing and implementing policies and procedures to control the risks and monitor and review the effectiveness of the policies and procedures.
Practically, implementing any policies and procedures needs to be managed sensitively and without drawing too much attention to the affected employee
Disclaimer: any views expressed in this article are those of the author only and do not constitute the provision of legal advice
New Evening Service
DDLS has recently received some funding to set up a night service which will deal with discrimination in relation to all attributes, including gender identity, sex and sexual orientation.
From this week onwards, if you believe you have been discriminated against on the basis of race, age, religion, gender identity, sex and sexual orientation we would be happy to assist you.
Our new service is currently on Thursday evening, and it is our usual practice to conduct telephone appointments, as this usually suits our clients best. We can also organise appointments outside this time if clients are not available in this timeframe.
If you have any questions about this new service, please contact either Placido Belardo or Chelsea Candy on 9654-8644. We look forward to being of service to you.
The Civil Society Shadow Report provides information on the extent to which Australia has implemented its obligations under the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and provides recommendations for future action. The aim of the Shadow Report is to assist the CRPD Committee in their recommendations to the Australian Government as the Shadow Report focuses on the perspective of people with disabilities in relation to Australia’s compliance with its obligations.
The Shadow Report has been compiled from consultations with disability representatives and advocacy organisations, evidence from the Government, community inquiries and reports and submissions produced by Civil Society. However, the issues raised in this report should be considered in the context of a first world nation where most Australians enjoy a high level of freedom, education, job opportunity and respect for individual rights.
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) Committee will consider Australia’s performance of its obligations under the CRPD in 2013.
Discrimination Against Pregnant Women
The Council of Australian Governments, in the National Disability Strategy, acknowledged that women with disability face discrimination and prejudicial assumptions about their right to experience parenthood. The discrimination faced by pregnant women is highlighted by FWO v Wongtas and Ucchino v Acorp Pty Limited.
FWO v Wongtas and Ucchino v Acorp Pty Limited demonstrate the Report is important for protection in regard to pregnant women. Both cases demonstrated the employers committed “a gross violation” of basic rights due to their gender and pregnancy. In each case, the Court stressed the need for deterrence from such practices. These cases are examples of the violation of rights the Shadow Report and 2013 review aim to protect.
Despite this, it should be noted that the Report focuses on discrimination against pregnant women with a disability where it is likely more protection will be needed.
While there is not enough room in this publication to answer this question fully, two recent publications, entirely unrelated, assist in providing answers to the question above. One document was launched by the Victorian Equal Opportunity and Human Rights Commission on 21 May 2012- "Desperate measures: The relinquishment of children with disability into state care in Victoria".
This is a report into the relinquishment of children with disabilities into state care, and there were no surprises for those working in the sector. Families of children with disabilities under considerable stress asking for support and assistance from the State – support not forthcoming – family crumbles.
Who does this benefit? The child? No. The family? No. The economy? No. Not one positive thing about it.
So why did we need the Commission to do a report about it? Why does the Department of Human Services need anyone to tell them about these problems and how families are being destroyed? And more frighteningly - will anything be done in response to this report?
Let's move to the next publication, which is the humble Moonee Valley Weekly. Their May issue focused on the unit in Port Phillip Prison for people with intellectual disabilities. 39 beds, 135 prisoners, and 60 waiting. Who doesn't know the research linking learning disabilities, language disorders, intellectual disability and involvement in the Juvenile Justice system?
Apparently, the Department of Education, where there is no individual funding for learning disabilities and most language disorders. And in relation to children with low IQ, why bother wasting money on high quality programs for their education? They’re simply too stupid to waste money on ("Disabled teen in suit over dreams unfulfilled" The Age 2/8/11).
So as workers stand back and watch their clients move from frustrated child at school to inmates at Port Phillip Prison, one has to ponder the stupidity of government. The Department of Education gets to save money from its budget, which the Department of Justice then has to spend on looking after the same young people. On the other hand, the Department of Education has just come up with a new program which caters for young people serving custodial sentences at Parkville College (The Age 23 May 2012).
There are not many people who have not heard about early intervention. And yet, the Department of Human Services spends money setting up respite houses to provide services to children who have been relinquished because they couldn't get services in the first place. And then we have the Department of Education withholding early intervention educational services due to children not meeting their restrictive criteria, which allows them to save money, and then spending money setting up special education for the young offenders they are manufacturing. Of course some students with disabilities are lucky - rather than go into Juvenile Justice, they simply go straight onto the Disability Support Pension, another lose/lose scenario for the individual and society.
Missing in action is someone working for the State of Victoria overseeing these practices, and looking at how much it's costing us all - emotionally and economically. If it wasn't so tragic, it would be amusing - a kind of "yes Minister" scenario.
And that, my friends, is why Australians living with a disability have the worst quality of life in the developed world.....
Disability Discrimination Legal Service Inc. – The Advocate 6