Sunday 26th July 2009
A permanent injury doesn’t give the boss the right to sack you.
A Central Coast nursing home told an injured nurse it had no more work for her and stopped paying her – but claimed she had not been dismissed.
The company said there was no work for her unless she made a complete recovery and was able to resume all her pre-injury duties.
This was despite medical advice that she would never recover from the back injury sustained at work.
The Assistant in Nursing had almost seven years service at the nursing home.
This included working 65 hours per fortnight, in accordance with her medical certificate, for three and a half years after her accident.
During this time she was doing lighter, more manageable work such as organising recreational activities, cutting fingernails and cleaning dentures, and handling paperwork.
When the NSW Nurses’ Association went to the State Industrial Relations Commission the company did not deny it had told the nurse there was no more work for her, had stopped paying her wages and superannuation and she had ceased accruing leave.
But it maintained it had not formally dismissed her and therefore the Commission had no power to order reinstatement.
Commissioner Donna McKenna accepted the union’s argument that the member had effectively been dismissed and the company agreed to re-employ her with back pay for lost earnings.
Commissioner McKenna said the company decided to send the nurse home without any prospect of returning to work unless she met the prerequisite of resuming pre-injury duties.
‘The fact that [the company] did not issue a letter of termination or arrange for the payment of termination monies is, really, neither here nor there,’ Commissioner McKenna said.
She said if companies were allowed to treat workers in this way it could remove employment protection for injured employees enacted by parliament.
It could also deny employees payment for untaken annual leave or long service leave that otherwise would fall due on termination of employment, and prevent injured workers getting early access to their superannuation funds.
She said there were comparisons between this case and those where an employer stops giving work to a casual employee but claims a dismissal has not occurred in order to deny the employee access to legal remedies.
NSWNA General Secretary Brett Holmes said the case underlines that nurses injured at work may legally be entitled to keep their jobs – even if they will never again be fit enough to resume all their pre-injury duties.
‘Providing you are capable of doing meaningful work, and such work is available, the union can press for your reinstatement even if you were terminated up to two years ago,’ Brett said.
‘A lot of nurses do not know they have this right.
‘Sacking someone because they can no longer cope with heavy lifting is not legally or morally acceptable.’
Brett said the union often acts on behalf of members dismissed after being injured at work.
‘Employers in aged care – where injury rates are high – are the worst offenders.
‘Too often their attitude to injured workers is, “chuck out the old and get me a new one”.
‘Employers will say “There is no more work for you but if you can go back to pre-injury duties give us a call”.
‘This contravenes the NSW Workers’ Compensation Act, which basically says you don’t have to be able to do all your previous duties to keep your job, providing you can do a reasonable portion of them and there is other meaningful work available.’