Further to some horrible and unethical, if not criminal, “return-to-work” practices, plans and forceful programs forced upon severely injured workers by their workcover case managers, so-called rehab service providers and penalty avoiding employers, we stumbled on this sickening legal case, where a NSW IRC Commissioner has expressed bewilderment at a Sydney council’s failure to return a rehabilitated injured truck driver of 28 years to his pre-injury position, but instead forced him to work in an alternative job involved heavy sledgehammer and crowbar work that exacerbated his injuries.
Injured worker placed in bewildering labouring job
The injured worker’s story
In June 2004, a 63-year-old truck driver, who had worked for 28 years for Sutherland Shire Council, slipped off his truck while checking a load and subsequently injured his neck and knee.
In-spite of his injuries, the injured worker had minimal time off work, and then continued to work as normal-driving trucks- before undergoing surgery on his knee in March 2006.
A month after his knee surgery, he then returned to work on light duties, and was deemed fit for normal duties by March 2007.
Understandably, the injured truckie took time off work and obtained a medical certificate stating that he was fit to drive a truck but not for labouring duties.
Still, on his return to work the injured truckie stated he was assigned a variety of non-driving jobs, which included for example landscape labouring.
If that is not enough, the injured worker’s employer contacted him in December 2007 via telephone and basically told him that he was sacked!
The letter he received stated that he was terminated because “the worker’s “ongoing medical restrictions” no work could be provided that wouldn’t “reaggravate” his injuries” – but just how SICK is this, folks!
The injured worker, of course, took the matter further and lodged an unfair dismissal; he actually sought a reinstatement in his pre-injury position (driving his truck), or, failing that, a meagre monetary compensation of 26 weeks of pay.
The NSW Industrial Relations Commission’s Commissioner Elizabeth Bishop, in hearing that the truck driver was unlawfully sacked, had expressed bewilderment at a Sydney council’s failure to return the rehabilitating driver, of 28 years’ “unblemished” experience, to his pre-injury position.
Commissioner Elizabeth Bishop did say that the Council had expended “considerable efforts” in an attempt to find a suitable position for the worker. However, she also made it very clear that these “suitable positions” did not include roles equivalent to his pre-injury truck-driving job.
Bishop stated that all the injured worker’s medical and WorkCover certificates had clearly shown that the worker was, in the wake of the rehabilitation of his original knee injury, fit to drive [his truck]
“From March 2007 all the [worker's] problems seem to have arisen as a consequence of attempts to place [him] in alternate positions that were unsuitable,” Commissioner Bishop said.
“I consider it quite unrealistic in terms of [the injured worker's] age, physical make up and work experience, to have expected he would have made a ready transition to such work without problems ensuing.”
She also rightfully rejected the most ridiculous argument form the injured worker’s employer (the Council) that the injured worker’s restriction had caused an “ongoing problem for the Council for over 3 years”.
The injured truck driver was on restricted duties for a very short time only, Commissioner Bishop said, and outside of that period he [the injured worker] could have been assigned an appropriate, alternative position.
In her decision however, Commissioner Bishop only allowed the injured worker to be compensated for 6 weeks, as she felt that he had not suffered “real economic loss”. He has also not (yet) been seeking alternative employment.
One would have thought that the employer would have been punished… ?
You can read the full case here: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Azzopardi) and Sutherland Shire Council (2008) NSWIRComm 1080 (30 September 2008)
This post is dedicated to “Truckie”, a injured long haul truck driver and a mighty and much loved forum member
[Post entered by T on behalf of WCV]