Further to some interesting comments and discussions about the problems injured workers face obtaining a new job because they have suffered a workplace injury, are still suffering the consequences of an injury, or, frankly, simply because they have a history of a workers compensation claim, we thought you may be interested in this legal case. This SA case discusses how an employer was ordered to pay an injured worker $29,000 in compensation after it rejected his application on the basis of his health and fitness.
Employer ordered to pay compensation for refusing to employ injured worker
The SA Equal Opportunity Tribunal ordered an employer [Torrens Transit] to pay $29,000 to an injured worker [job seeker] after the employer rejected his application on the basis of his health and fitness.
The [ previously] injured worker had applied for a bus driver position with Torrens Transit in 2005. The injured worker had been employed as a bus driver and had conducted his own bus charter and tour business since the 1960s. He had applied for the position with Torrens after he was made redundant.
The injured worker was asked to undergo a functional capacity assessment after he had disclosed his past workers compensation claims.
They cited the following reasons:
- injured worker has a restricted movement capacity for kneeling and squatting
- injured worker has a slight impingement in the right shoulder
- injured worker has bilateral grip strength of below 29kg
- injured worker has a poor back fitness rating
The injured worker was rejected by the employer [Torrens Transit] for the job based on the above -rather vague- “assessment”
The injured worker must have been quite upset for he attended his GP soon after his rejection and asked to be examined and assessed for the purpose of renewing his bus driving licence .
The hearing
The injured worker told the SA Tribunal that he had sprained his knee a few days before the health assessment, which probably inhibited his ability to perform a squat, but had fully recovered since.
The injured worker also argued that the functional assessment did not show that he was unfit to undertake the tasks of a bus driver as he had successfully done in his previous and current employment [as evidenced].
The injured worker also stated that the assessment report regarding his back fitness rating did not reflect or demonstrate any current symptoms or limitation in his back function. He also showed that the report outlined that his back fitness could be easily remedied with simple exercises.
An occupational therapist however stated, in cross examination, that there were aspects of the injured worker’s history that would require further examination. His grip strength (below normal for his age) and his back pain episode of 2004 would need further investigation. However, the Occupational therapist agreed that the fact that the injured worker was driving busses for up to 6 hrs per day and full time, immediately before the functional assessment, would mean that the injured worker was not at risk of (further) injury when undertaking the duties of a bus driver.
In its defense, Torrens Transit tried to demonstrate that the assessment had been developed based on a “job analysis” of a bus driver’s duties, and that only if applicants passed the assessment were they offered the job. If they did not pass the assessment, with the exception of the treadmill test, they were simply rejected.
Torrens Transit also tried to argued that its conduct to select applicants on the basis of the “assessment” came under the exemption under s71(2) of the State Equal Opportunities Act . This section states that “discrimination does not apply if the person suffering from an impairment would not be able to perform the task adequately without endangering themselves or others; or respond adequately to emergency situations that may occur.”
But the SA Tribunal found that Torrens Transit did not have enough (if any) information about the injured worker to use the s71(2) exemption reasonably. The Tribunal also noted that the results of the assessment tests were reported in an “ambiguous” manner. They also pointed out several contradictions within the assessment report.
The Tribunal concluded that the deficiencies exhibited by the injured worker and his ability to perform the duties of a bus operator was not adduced or identified in the health assessment
You can read the full case here: Carman v Torrens Transit Services (North) Pty Ltd [2009] SAEOT 6 (29 July 2009)
[Post entered entirely by T on behalf of workcovervictim]
Shortlink: http://aworkcovervictimsdiary.com/?p=9800
We received an interesting question via email from ‘K’: