23 Jun 2016

Return to work rules not overridden by the Fair Work Act

By Shae McCartney, Laura Forman and Jessica Tinsley

An employer can't just show compliance with return to work obligations leads to cost, inconvenience and disruption - it must also be unreasonable.

In rejecting a constitutional challenge to South Australia's new Return to Work legislation a 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.

The worker is injured at work

In Walmsley v Crown Equipment Pty Ltd a field service technician employed by Crown Equipment Pty Ltd was dismissed after several workplace injuries left him unable to perform the inherent requirements of his role.

The worker first sustained a back injury in 2012 which resulted in a number of periods of partial or total incapacity and returned to work in July 2013. 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.

The worker seeks suitable work

The worker applied to the South Australian Employment Tribunal (SAET) for Crown to supply him suitable work under section 18(3) of the Return to Work Act 2014 (SA) (the RTW Act) as he was ready, willing and able to return to work.

Crown opposed the application on two important grounds:

  1. that section 18 of the Act was inconsistent with the unfair dismissal remedy provided by section 390 of the  Fair Work Act 2009 and was therefore invalid due to section 109 of the Constitution; and
  2. that if the provision was valid, that the remedy did not apply to employees once dismissed, or alternatively that it was not "reasonably practicable" to provide suitable employment.

The constitutional challenge

In rejecting this challenge, the SAET held that the unfair dismissal provisions of the Fair Work Act do not address compensability of work injury and  are not detracted from by section 18 of the RTW Act. It was said that the limited degree of interaction between the Acts did not involve any element of inconsistency.

Reasonably practicable to reinstate?

There are two matters considered in deciding whether a worker is entitled to be reinstated:

  1. whether or not it is unreasonable for the employer to provide specified employment; and
  2. if not, whether there are grounds upon which it should order otherwise.

For an order to be granted the employee may be required to establish that he or she has the qualifications, experience, skills and aptitude necessary and if there is any deficiency it would not be unreasonable for an employer to provide skills and training.

In this case the employee, in closing submissions, limited the scope of his application and sought only that he be provided with employment of the same nature as he performed up until his employment was terminated.

The tribunal considered the outcome of a Functional Capacity Evaluation which determined that the worker had 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 rejected Crown's submissions that:

  • the tasks the employee had performed had been menial;
  • a shrinking labour market would result in another employee being made redundant; and
  • the employee had a real risk of reinjuring himself. 

Crown had failed to establish that it was not reasonably practicable to provide the applicant with suitable employment. The tribunal ordered  that Crown provide employment that is the same or equivalent to the applicant's employment immediately before the incapacity occurred. 

Key leanings: managing costs and compliance

While this case considered the legislation particular to South Australia, similar legislation exists across the country. This case highlights the importance of:

  1. making clear what an employee's job description is prior to any injury occurring so that clear evidence can be led regarding the inherent requirements of the role;
  2. documenting rehabilitations carefully, including the temporary nature and in compliance with the relevant legislation;
  3. prior to making a decision about the employment of an ill or injured worker, ensuring that there is clear expert evidence about:
    1.  the employee's ability to return to work in any capacity in the foreseeable future;
    2. any restrictions on the employees capacity and if the employer can reasonably accommodate them; and
    3. any reasonable accommodations that can be made to the worker's pre injury role.
  4. complying with any relevant State Rehabilitation legislation or risk the decision to terminate employment be overturned and the employee reinstated.

The Tribunal gave clear instructions that "compliance of an employer with return to work obligations will inevitably result in some cost, inconvenience and disruption of normal business operations."

As such it is on employers to show that these costs, inconvenience and disruption are unreasonable, not just that they exist.

Seek advice early in managing complex cases regarding ill or injured employees to avoid the risk, uncertainty and costs involved in potential mismanagement of return to work plans. 


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.