Health issues & can't perform the inherent requirements of the role

[Hrqld]

We have recently recruited someone who is just coming up to their probation period however due to extentuating circumstances this employee was hired prior to employment medicals being undertaken. As it turns out, this employee has considerable health issues that will actually prevent them from performing the inherent requirments of the role. This issue has been ongoing since one month after they commenced and we have only recently receieved notice that this person is currently unfit to work in the role.

Several concerns I have:

• *When he commenced we did not get him to fill out our company 'health questionnaire' that allows the applicant to list any health issues that could affect performing the role.
  In our adverts we state that passing a medical is the requirements of obtaining this position however this is not specified in the actual employment contract.
  

What is our position now? In a past example where someone became sick, we as an employer we required to allow this employer to utilise all sick leave and then could not take any action, i.e. termination, until after 3 months of us becoming aware of this emplyees condition. Will this be the same in this case? Are we able to legally terminate based on him not being able to perform the role? Should we look at extending the probation period? Can we even do this as extending probation is not stated anywhere in our contract, although I believe the qualifiying period is 6 months?

thanks

[Moz]

Why would you want to extend the probationary period? I can't see how that helps at all.

Can't you simply terminate within the probationary period because they are not suited to the position?

I thought that's what the probationary period was for!

[Subliminal]

You have to be careful of an adverse action claim even if you do terminate in the probationary period. I suggest that you get a legal opinion on this one - even if its just on the procedure that you need to follow in this instance.

[Moz]

Originally Posted by Subliminal

I suggest that you get a legal opinion on this one

Unfortunately this applies to almost everything since the FWA arrived. The law firms must be rubbing their hands with glee now that we're all walking on egg shells

[InisdeHR]

Hi HRqld

Do any of your job application forms or offer letters say that the offer of employment is subject to staisfactory checks (medical, criminal etc) and references? Usually, a lot of companies have this term included on their application forms and offer letters if not in the contracts (although it is very important to have it mentioned on the contracts of employment).

If you have got that covered check with the Fair Work Australia to know where you stand if you do not want to spend money on lawyers.

If I were you I would have a meeting with the employee as the medical check clearly prevents him/her from taking up certain tasks. I guess it's now the issue of how important thse tasks are i.e. could the employer provide reasonable adjustments for this employee to continue working. If not, then it's a clear case of capability issue which should be dealt with carefully. The good thing is the employee is in the probabtionary period and the permanency of employment is not confirmed yet. I would normally advise if the managers could redeploy the employee elsewhere in the company - I do acknowledge that it may not always be case. Even if you plan to extend the probationary period you will be coming back to the same place where you started, infact you will be worse-off if you extend the probation under current circumstances - i.e. what if something happens during his/her employment and you will be questioned as to why the employee is allowed to continue in his/her duties without addressing the issues raised in the medical check giving employee a stronger ground to take you to court for compensation.

The best bet is to address the current employment situation straightaway but any form of termination (dismissal or redeployment) of the current employment/engagement should be made through careful consultation in line with the award/EBA terms & conditions.

[Magel]

Hello HRqId,

As evident in the document/s presented to you re the proby's health condition being unfit to work gives you the clear reason/probable cause to disqualify him/her from being regularized.

Though the 'clause' wasn't in the contract which you had him/her signed, there always is a general principle in management (and as a business) wherein you can always correct the organization's policies & procedures. It's only a matter of how you communicate this with the employee that he/she is being disqualified from the probationary period. This way, you had prevented financial losses and had helped the person not to worsen his/her health condition.