Termination on the grounds of incapacity

Termination on the grounds of incapacity

55. TERMINATION ON THE GROUNDS OF INCAPACITY

55.1 If the University believes there is doubt regarding a Staff Member’s capacity to perform the duties of their position due to serious illness, the University may require the Staff Member to undergo a medical examination. The University will nominate a medical practitioner to conduct the medical examination at its expense and will provide written notice of not less than one month that a medical examination is required.

55.2 The medical practitioner will be required to make an assessment as to whether the Staff Member is able to perform their duties and will be able to resume them within 12 months (or in the case of a fixed term employee within 12 months or the balance of their contract, whichever is the lesser). In doing so the medical practitioner will, as far as possible, apply the definitions, if any, of ‘total and permanent disability’ or ‘total and temporary disability’ (as appropriate) contained in the Trust Deed or like instrument of the Staff Member's superannuation scheme. A statement setting out the inherent duties performed by the Staff Member will be provided to the medical practitioner to assist in the assessment.

55.3 Copies of the medical report will be provided to the Staff Member and University.

55.4 If the medical report finds that the Staff Member will be able to resume and perform the inherent requirements of their substantive position within a 12 month period, the University will proceed with a return-to-work plan (or amended plan depending on the circumstance). Notwithstanding the above, a Staff Member who has not returned to work within 24 months of commencing leave, may be terminated by the University in accordance with subclause 55.7 (a) or (b).

55.5 If the medical report finds that the Staff Member will be unable to perform the inherent requirements of their substantive position within a 12 month period, the University will proceed to terminate the Staff Member’s employment with payment in lieu of notice in accordance with the table below:

Type and Length of Employment

Payment in lieu of notice

Continuing Staff Member or Fixed term Staff Member with more than one year’s service

6 months

Fixed term Staff Member with a fixed term appointment of one year or less

6 months or the remainder of the term of the appointment, which ever is less

55.6 The University will support an application to the Staff Member’s superannuation fund for ill health retirement or temporary disability benefit under the rules of the superannuation fund. If a medical report has been obtained prior to the Staff Member making this decision, it may be used as evidence in this process.

55.7 If the Staff Member is a member of a superannuation fund which does not provide for ill health retirement or temporary disability benefit, or the fund declines to provide such benefits, the University will offer in writing:

(a) to allow the Staff Member the opportunity to submit a resignation and, if the resignation is offered, will accept it immediately; or

(b) where no resignation is forthcoming within 28 days of the written advice, to terminate the employment of the Staff Member with payment in lieu of notice in accordance with the table below:

Type and Length of Employment

Payment in lieu of notice

Continuing Staff Member or Fixed term Staff Member with more than one year’s service

6 months

Fixed term Staff Member with a fixed term appointment of one year or less

2 months or the remainder of the term of the appointment, whichever is less

55.8 If, within 14 days of the medical report being made available, the Staff Member (or, if they so choose, their Representative) so requests, the University will take no further action until the findings of the report are confirmed by a review panel. The review panel will consist of two medical practitioners, one appointed by the University and one by the Staff Member. The practitioners will not have been involved in preparing the original report or the Staff Member's course of treatment.

55.9 The University may consider a Staff Member’s refusal to undergo a medical examination in accordance with these procedures as prima facie evidence that such a medical examination would have found that the Staff Member was unable to resume duty and may act accordingly. No penalties in terms of misconduct will be enacted under this clause, and all outstanding entitlements will be paid to the exiting Staff Member.

55.10 These provisions do not displace or override any existing or future applicable workers’ compensation schemes, legislation or relevant industrial instruments.

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