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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38265
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Hi, one of our employees, employed as an interstate truck driver

Resolved Question:

Hi, one of our employees, employed as an interstate truck driver has recently been diagnosed and now being treated for Hepatitis C. One of the side effects of this treatment is fatigue and as this employee is engaged to operate a truck and semi trailer, I have requested his doctor provide a clearance before I can allow him to return to work. The doctor has advised that the side effects (flu like symptoms and fatigue) are liklely to continue for the duration of his treatment (48 weeks). I do not have alternative duties for him.

Once his sick leave entitlements expire, what obligations do I have if he cannot return to normal capacity?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Afternoon,

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

Does his doctor say that he is unable to do any duties involving driving because his fatigue will impact on any distance?

When you employed this employee was he under an award or an agreement and is there anything in those documents about termination as a result of illness?

Did he contract this condition as a result of his employment?

Customer: replied 1 year ago.

Hello, the doctor letter states


 


"XXX is currently undergoing a course of treatment for 48 weeks with a number of side effects that may potentially affect his ability to perform his normal working duties.


 


Side effects can include flu-like symptoms and fatigue. We have discussed at thength the importance of XXX recognising worsening symptoms and to adjust his duties in accordance with his state of health. This may include limiting overnight driving and ensuring frequent breaks during working hours.


 


We expect that side effects of treatment will last for the duration of therapy."


 


The distances our drivers are expected to cover are between 750 - 1000 km per day and does involve an amount of overnight driving to meet time requirements in line with the National Driver Work Diary allowable working hours.


 


The award he is employed under is the Road Transport (Long Distance Operations) Award 2010. I have not seen anything relating to termination as a result of illness.


 


This was a pre-existing illness.


 


 

Expert:  Leon replied 1 year ago.
Good Afternoon,

You were aware of the pre-existing illness before you took him on?

How long has it been employed with you?
Customer: replied 1 year ago.

The employee has been with us for approx 4 years and the condition was only made known to us approx 6 months ago. I believe this is the same time the employee became aware of the diagnosis.

Expert:  Leon replied 1 year ago.
Good Evening

Is there a possibility that you can offer him leave without pay and if he is fit to return then take him back?

If not then you have to advise him that as he is unable to do the work then you have no alternative but to terminate him.


Customer: replied 1 year ago.

I could offer leave without pay but I also have a vehicle that is idle during this time and need to put it to work.


 


Under the award and any other employment law, am I under any obligation to hold the position?

Expert:  Leon replied 1 year ago.
Good Afternoon

It is a difficult one because he can sue for unfair dismissal.

If he is off sick, even though he is out of leave, if it is for less than 3 months it is deamed temporary and he can expect his job top be there when he comes back.

If more than 3 months then you may have rights.

The following link explains the situation better

http://www.mondaq.com/australia/x/220210/Redundancy+Layoff/When+can+employment+be+terminated+for+absence+from+work+due+to+injury+or+allness+When+can+you+terminate+a+malingerer

You need to get a medical report from his doctor an whether he will be able to return to work.

It is a difficult situation for you.

The next link explains what you need to look at when deciding to terminate him.

http://www.fclawyers.com.au/fact_finders/view/21/category:3

You have to do your best to assist him before you terminate.

Is there anything else I can assist you with?
Customer: replied 1 year ago.

Thanks for your help.

Expert:  Leon replied 1 year ago.
Good Morning

Happy to be of assistance.

If there is anything else I can assist you with please do not hesitate contact me.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.


Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38265
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Leon and other Australia Law Specialists are ready to help you

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