High Onus on Employer Regarding Injured Worker
The South Australian Employment Tribunal has upheld its statutory power to order employers to reinstate injured workers who have been improperly dismissed, reminding employers that return to work obligations may result in some cost and inconvenience. A field technician employed by Crown Equipment Pty Ltd was dismissed after several workplace injuries left him unable to perform the requirements of his role. The worker sustained a back injury in 2012, returning to work in July 2013 after a number of periods of partial or total incapacity. After reinjuring his back in June 2014, Crown formed the view that continuing to provide modified duties was unsustainable and posed a risk to the employee. He was subsequently dismissed in April 2015.
This decision concerned an application by the employer to the SAET for Crown to supply him with suitable work pursuant to the Return to Work Act 2014 (SA). Crown opposed this application on the basis that the RTW Act was overridden by the Fair Work Act, and further that if the provision was valid it was not “reasonably practicable” to provide suitable employment. The tribunal rejected the opposition to this application by Crown, stating that the unfair dismissal provisions of the Fair Work Act do not address compensability of work injury and are not detracted from by the RTW Act. In this case, the tribunal considered that the employee had the capacity for medium to heavy level work with a restriction that he not engage in work which involved bending at the back for sustained periods or on a repetitive basis. The tribunal noted “compliance by an employer with return to work obligations will inevitably result in some cost, inconvenience and disruption of normal business operations. In particular circumstances these consequences may be such as to weigh in favour of a finding that it is not reasonably practicable to provide, or to continue to provide, suitable employment.” However, in this case, the SAET held that Crown had failed to establish that it was not reasonably practicable to provide the applicant with suitable employment and ordered that Crown provide employment that is the same or equivalent to the applicant’s employment immediately before the incapacity occurred.
The South Australian Act is relatively new and does not exist in Western Australia though it is arguable there is a similar approach in WA. For more information on how to appropriately manage a person with a workplace injury WorkCover WA have created an Injury Management Guide for Employers.