Attempt to accommodate accident was acceptable

Depending on what industry you’re involved in, workplace accidents are common. When it comes to my daily desk job I’m not surrounded by too many hazards. But if you’re employed in industries such as construction and agriculture it can be easy to injure yourself despite everyone’s best efforts at complying with health and safety. I will always remember my Dad lecturing me about why it’s important to turn off the PTO drive every time I got out of the tractor. What it is important to realise is that if you are injured in your place of work and cannot complete the tasks required of your pre-injury role, your employer may be justified in dismissing you.


In a recent case before the Employment Relations Authority the company terminated Mr N’s employment due to medical incapacity and the Authority decided that this was justified. Mr N had been working as a maintenance technician since February 2011. In May 2013 Mr N fell down a five metre shaft. He suffered serious spinal and pelvic injuries and a broken ankle, requiring emergency surgery. His injuries required ongoing specialist care and an intensive rehabilitation program over a number of months.

Graduated return to work

Almost a year after his injury Mr N returned to work. He was limited to light duties and given a ‘graduated return to work program’ in the hope that eventually he would be able to get back to doing his pre-injury job. However Mr N did not progress as expected and the most he was able to work was four hours a day, four days a week. The company got professional reports and opinions about when Mr N was likely to be able to work full time. Unfortunately, Mr N was far from being able to perform the hours or full range of duties needed for his full-time role.

Consultation process ends in termination

The company began a process of consultation about the possible termination of Mr N’s employment. Firstly, there was actually a term in Mr N’s employment agreement that allowed for termination of his agreement after 3 months of medical incapacity. Secondly, the company was concerned about continuing to pay for a contractor to cover Mr N’s role. Thirdly, the company looked closely at finding alternative duties for Mr N. On 31 March 2015 the company advised Mr N that his employment was terminated because he was so incapacitated that he could no longer perform his duties.

Personal Grievance raised by employee

On 1 May 2015 Mr N raised a personal grievance for unjustified disadvantage and unjustified dismissal. He alleged his dismissal was unjustified for various reasons including pre-determination, failure to accommodate his disability, taking into account irrelevant considerations, not genuinely considering redeployment and failing to provide him with outplacement support.

The Authority decided that the company’s actions were what a fair and reasonable employer would have done in the circumstances and therefore Mr N’s dismissal was justified.

The Authority made it clear that the company did not dismiss Mr N for any deliberate or careless fault, but rather Mr N’s situation literally occurred by accident.

Mr N was awarded $2,000 for lack of support in finding a new job as well as $1000 to compensate for injury to his feelings. The flipside is that if the company had not tried to accommodate Mr N after his injury then Mr N’s dismissal would not have been justified and the company would have been liable to pay a lot more in compensation.

The moral of the story is twofold. If you are an employee involved in an accident while at work, you should be aware that if you can no longer complete your role and there are no alternative roles available, you may be dismissed. On the other hand, employers should always endeavor to follow proper procedure. If in doubt seek advice; I will happily recommend some good employment lawyers.