It can be satisfying to know that you have helped an injured worker through their rehabilitation and assisted them to return to work within your business, but navigating the ongoing employer/employee relationship can become more difficult when an employee decides to bring a common law claim. Here are our top 5 tips for managing a litigant employee:
1 Don’t discuss the claim
Once your worker has instructed a solicitor and the matter is in the hands of your insurer/legal representative, all communication about the claim must be through the solicitors for each party. It is okay and necessary to discuss practical matters which affect the business, for example:
- Time off for medical appointments
- Time off for a compulsory conference
- Suitable duties
- Day to day work activities
- In house rehabilitation (i.e. physiotherapy or work hardening programs)
If a worker attempts to discuss their damages claim with you, direct them to their legal representative and advise your solicitor. If there is information you require about your worker’s claim, speak to your solicitor rather than asking the worker directly.
2 Confidentiality is key
Ensuring that claims are confidential is important for many reasons but most notably:
- To ensure that other workers are not encouraged to commence claims after hearing about Joe Bloggs’ settlement cheque; and
- To ensure that your worker is not treated differently by other employees.
The best way to ensure confidentiality within the business is to ensure that only a select few people are aware of the claim and that they manage matters relating to the claim discreetly.
If you suspect that a worker is discussing their claim with co-workers, inform your solicitor immediately. Think about whether the worker is in breach of any of your internal policies and if so, act accordingly. Your worker may be in breach of the confidentiality clause in the settlement contract if they are discussing a settlement.
3 Equal opportunity
It is easy for injured workers to become disgruntled if they feel that they are being disadvantaged as a result of an injury. Quite often a worker’s underlying sensitivities about how an injury may affect their employment are triggered if they are unsuccessful in obtaining a promotion, not provided with overtime or have another similar experience. The worker may perceive that they are being targeted as a result of their injury, although that is not the true reason behind the business decision.
Take the time to explain the reasons behind your business decision to put your worker’s mind at ease and document your discussions for their file. Provide feedback to your worker to ensure that they know how to achieve the promotion or overtime they are seeking in future. Open communication goes a long way to avoiding aggrieved employees.
4 Remember your rights and obligations as an employer
If despite your best efforts, your employee becomes unable to meet the inherent requirements of their role and there are no redeployment opportunities, it is important to know your rights as an employer. Under the WCRA it is an offence to dismiss an employee within 12 months of an injury solely or mainly because a worker is not fit for employment. Speak with your lawyer if you require advice. If 12 months have passed, you have the right as an employer to dismiss a worker who is unable to complete their work tasks, provided there is adequate supportive medical evidence.
Remember that your litigant employee is still bound by your company policies and you retain all of your usual rights as an employer. There is no need to tiptoe around issues that relate to a breach of your internal policies or your worker’s contract of employment. Keep your lawyer up to date about any disciplinary action or changes in employment status and don’t forget to contact your lawyer if you require advice regarding a disciplinary matter.
5 Keep a record
Keep a record of all matters that may be relevant to the claim and discuss those matters with your lawyer. For example, keep a detailed record of any instances where a worker attempts to discuss their claim with you, regular absenteeism, complaints regarding difficulty with work tasks as a result of injuries, new/subsequent injuries or similar occurrences. These records will help you to ensure that the worker remains capable of performing their role and will highlight any issues that may arise. If you notice that a worker is having trouble in their role, you may be able to make some simple adjustments to better support the worker in their position.