Injured worker placed in bewildering labouring job

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.

Apparently, when declared fit for normal duties, the injured and now rehabilitated truck driver was “conveniently” told by the Council that the truck he had previously been driving and operating “was to be sold” and “that this position no longer existed”!
The injured truck driver was, therefore, forcefully assigned an alternate “suitable” position within the Council, and which the injured worker stated, involved heavy sledgehammer and crowbar work, which exacerbated his injuries!

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.

No wonder, Truckie suffered a further injury to his neck and shoulder from those labouring jobs and a “partial nervous breakdown” from a job that consisted him “entering data” on a computer (and we guess simply from the way he has been treated).

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 Hearing

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.

“What is totally unclear to me, is why on earth [the worker] wasn’t just left driving his truck when he returned to it in March 2007.”

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]

Commissioner Bishop found the claim that the worker’s truck was to be sold was unsubstantiated (it still hadn’t been sold at the time of hearing), and that the supervisor responsible for assigning the worker a new role had actually also failed to determine what the injured worker’s pre-injury position actually was.

“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”.

Bishop said: “That clearly was not the correct case and presents a misleading and frankly exaggerated picture”.

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.

It was therefore concluded that the termination of his employment, therefore, was unjust and unreasonable.

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]




3 Responses to “Injured worker placed in bewildering labouring job”

  1. The very popular magazine ‘Health and Safety for Beginners‘ kindly published our article, and we say good on them for raising awareness in such a despicable RTW practices!

    workcovervictim3 July 23, 2012 at 7:09 am
  2. Returning workers to inappropriate RTW program’s is common in this no blame Workcover system. After a shoulder reconstruction my first duty was to clean out a storage room which involved heavy lifting and above shoulder reaching. The rest of the program was heavy manual work. Until my shoulder tore. My boss refused to follow my Doctors instructions. Then I was accused of not keeping to my RTW program. It became my fault. It’s a no fault, free for all system for employers! Yet the failure of my employer to follow Drs orders was common knowledge to all involved. There was no consequence to their actions. I must add that my co workers saw the insanity that occurred to me and how sadistic my bosses actions. They ceased their work and came to help me. My boss stood and watched.

  3. This case makes me think of my own very first return to work “plan”.
    I still remember my very first day at “RTW” where I was initially back in ICU but was given 2 “light” patients instead of “1” heavy. Guess what happened, 1 of the 2 “light” patients had a cardiac arrest and I had to jump on his chest with my freshly operated shoulder and do the manual heart compressions… I say no more…

    workcovervictim July 22, 2012 at 10:12 am