One misstep

Employees’ protection against dismissal during illness arising from an injury suffered at the workplace is not conditional on the employer knowing at the time of dismissal that it was the employee’s injury that led to the illness.

Norrbomvinding 10180

Under several collective agreements, employees have protection against dismissal during the first eight weeks of the period in which they are documented as being unfit for work because of an accidental injury at the workplace. But is that protection conditional on the employer knowing at the time of dismissal that the illness was caused by the employee’s injury? That was the question in this industrial arbitration case.

One misstep
The case concerned an employee who, during work, sprained his ankle when stepping off a trailer.

During the proceedings, the employee explained that immediately after the accident he had called the main office and explained to one of the company’s three office trainees what had happened. They had agreed that the employee would go on sick leave from the next day.

However, during the proceedings the employee’s immediate manager denied the employee’s explanation, stating that the office trainees themselves would not take a message regarding an industrial injury; they would ask the employee to contact the manager instead.

The manager further explained that she had not been informed about the employee’s injury at the workplace until after the dismissal.

Fundamentally and specifically
The umpire stated that, according to their wording, the collective agreements do not contain a requirement that employees’ special protection against dismissal during illness which has arisen after an injury at the workplace is conditional on the employer knowing that the employee is absent due to sickness as a result of such an injury.

Nor is the protection conditional on the required documentation for the illness being presented to the employer, stated the umpire.

Specifically, the umpire did not find any basis for disregarding the employee’s explanation that he had suffered an accidental injury during work and, accordingly, the employee was deemed to have protection against dismissal.

Norrbom Vinding notes

  • that the decision establishes that this type of protection arises irrespective of whether the employer is aware that the illness is caused by the injury; and
  • that this measure will probably also be taken into account in relation to similar provisions in other collective agreements, unless clear evidence can be presented that the parties intended a different understanding.

The content of the above is not, and should not be a substitute for legal advice.

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