An employee can be placed on modified duties if they become ill. The modified duties generally involve a temporary variation of the employee’s duties. Often, the duties are lighter and not as arduous on the employee. The purpose of modified duties is to allow the employee to recover and eventually return to their original duties once a medical practitioner provides clearance.

Dismissing an employee who has been placed on modified duties is a very delicate process and may expose the employer to liability if the process isn’t executed in the correct manner or for the correct reason. In particular, an employer may be in contravention of section 386 of the Fair Work Act 2009 (NSW) where the dismissal can be construed as harsh, unjust or unreasonable.

However, where an employee fails to fulfil the inherent requirements of the employment contract then a lawful dismissal will be warranted. Such a situation often arises in the context of an employee experiencing an illness which limits their capacity to perform the job requirements of the employment contract.

In J Boag and Son Brewing Pty Ltd v Allan John Button[2010] FWA FWAFB 4022 Mr Button was an employee of Boag and Son Brewing Pty Ltd. However, due to a workplace injury his workplace duties were modified to accommodate the injury he had incurred. His employment was subsequently terminated on the basis that he could not perform the inherent duties of his original role.  The Full Bench held that in determining whether an employee has the ability to perform the inherent duties of a role, it is the substantive position of the employee which must be considered and not the restricted or modified duties. On that basis, Mr Button’s termination was justified as he did not have the ability to engage in lifting movements which was essential to his substantive job positon.

However, terminating an employee who has incurred a workplace injury and is therefore governed by the Workers Compensation Act 1987 (NSW) is a very delicate process. Please contact our lawyers at JFMLAW to seek further advice on this issue.