Your questions answered
I have had an extended absence from my work as an early childhood education assistant since 2019 due to achronic medical condition. I have kept our centre well informed of how I am tracking and they have been getting regular medical updates each time I have a medical review. I am now well again, have a fitness certificate and able to resume duty, but my centre is claiming they have received advice that they can’t return me until I undergo a medical assessment with a doctor of their choosing. Can they do this?
We see this more and more where employers try to force an employee to attend a medical assessment. We often have employers telling us they are obligated to do this so that they can discharge their duty of care to the person and to others in the workplace.
When an employee is absent on medical grounds, the employer can require medical certification to authorise the absence. Where this absence is extended for a longer period, for the purposes of planning, the employer can ask the employee for information about the prognosis of their condition.
However, an employer cannot direct an employee to a medical assessment and claim that it is reasonable for them to do so, unless they can show two things: that they have a reasonable suspicion the employee is not fit for duty; and that they have not received any information to satisfy them that the employee is fit for duty.
It is our view that before making any attempt to direct an employee to a medical assessment, the employer should in the first instance seek the information it wants from the employee.
There is no one more qualified to offer opinion on your fitness for duty than your ongoing treating medical practitioner and they can provide all the necessary information to satisfy any duty of care or workplace health and safety obligation the employer may have. This information does not need to disclose personal information about your condition, but it should include information about your capacity to undertake your usual duties and outline any adjustments that might be needed to ensure you can return to work safely and continue to work safely. Your employer should accept this advice at face value.
Under anti-discrimination legislation, employers are obliged to accommodate reasonable adjustments for employees who need them at work for medical reasons.
If your employer has been provided with the necessary information to permit you to return to work and they still refuse, or if they refuse to make the necessary reasonable adjustments, please contact our union office for further advice and assistance.
I am retiring after 35 years of teaching. I want to be available to do casual work at my current preschool but this is likely to be not as a teacher as we have more than we need on most days. I might also do casual work elsewhere.
Is it possible to be engaged as a ‘Diploma’ employee even though I am actually a teacher? Is this always the case or are there different rules around this in different circumstances?
If I am engaged as a Diploma employee how will this affect my responsibilities/daily tasks? Should I program and/or write observations of children’s learning?
Do I need to maintain my accreditation if I am only working as a casual? Is there anything else to consider?
Congratulations on 35 years in the early childhood sector.
If you apply for a job specifically as a ‘Diploma’ then you can be engaged as such. If this is the case, you should only perform duties at that level/job description, and you cannot be counted towards the mandatory number of teachers required at the centre when you are employed as an educator instead of a teacher.
However, some areas are not clear cut. Even if you are following the Preschool’s Diploma job description there are certain responsibilities that you will naturally use your teaching qualifications to fulfill. The knowledge you acquired as a teacher would be utilised if you were to program activities for a group of children, record observations of children and analyse their learning within the context of the Early Years Learning Framework outcomes and developmental theorists, for example.
Would you do this differently given your qualifications and years of experience if you were employed as a ‘Diploma’ a sopposed to a teacher or would your strong knowledge of child development influence your interpretations and planning? I suspect the latter and encourage you to consider whether agreeing to be paid a lower rate as a Diploma qualified educator is the best outcome after all.
In addition, centres in NSW need one teacher for 25-39 places, two teachers for 40-59 places, three teachers for 60-79 and four teachers in centres with 80 places or more. If a teacher is absent on that day, you can only be counted a teacher if you have been employed (and are paid) as a teacher on those days.
If you are not working as a teacher you could put your accreditation on hold with NESA for up to five years, but it is probably best not to do this because whilst your accreditation is on hold you cannot legally be employed as a teacher, effectively preventing you from casual work as a qualified teacher.
As you can maintain your accreditation if you are employed as a casual teacher during your maintenance period, I recommend you advise NESA that you are working casually so your maintenance period is increased from five to seven years.