A Victorian inured worker was provided with alternative employment due his incapacity to perform his pre-injury duties. His inability to perform pre-injury duties were already determined however his employer attempted to dismiss him based on the results of the Functional Capacity Evaluations.Which should be used as a tool to determine capacity not incapacity….
For the purpose of finding suitable employment. Certainly not as a tool for discrimination purposes and a means to terminate and harass employees. The employer provided him with new employment, ( right choice) then completely ignored the injured worker was now active and capably performing his new workplace duties since 2011 attempted to dismiss him based on the results of the evaluation. His inability to preform his pre-injury duties. ( not a good decision) A timely warning for employers who choose to terminate their injured employees using FCE’s for discriminatory purposes.
Injured worker keeps job in ‘baffling case of discrimination’
An injured Vic man has escaped dismissal, with his employer, Visy Board, retreating from its previous position that he was not fit for work. The worker’s lawyer claimed the cardboard giant wrongly relied on a finding he could not perform his pre-injury duties.
On Monday afternoon, Visy agreed to let the worker keep his job shortly after his legal representative, Maurice Blackburn Lawyers filed a discrimination application in the Federal Court, seeking an injunction to restrain the company from terminating his employment. A Federal Court hearing had been scheduled for Tuesday.
The worker, who joined Visy as a labour hand in 1996, sustained a serious back injury in 2001 while serving as a floor supervisor. He was able to return to work on modified office duties, before resuming floor work a year later. Two years ago, he agreed to a company request to move to a new role as a quality control manager, which is office-based. Recently, the worker was suspended from work and directed to attend a medical examination to determine his fitness for continued employment
New position ignored
According to Lawyer Josh Bornstein, a principal with Maurice Blackburn, Visy threatened to dismiss the worker after directing the examining doctor to advise whether he was fit to perform the role he undertook prior to being injured in 2001.
‘This was a baffling case of direct discrimination where Visy cited [the worker] as being incapable of performing the duties of his former role — totally ignoring that he has been in a new and entirely different position since 2011,’ he said.
‘Further to that, the doctor who examined [the worker] at Visy’s direction says [he] has the capacity to perform quality control work, which is work he has been enjoying for the last two years.’
Bornstein said that the worker will return to work today (23 January) as a result of a settlement with his employer.
Meanwhile, the national secretary of the print division of the Australian Manufacturing Workers union, Lorraine Cassin, said the worker had a long and unblemished record with Visy and should have been treated better by the company.
‘This case highlights that no matter how large and powerful an employer is, the mistreatment of employees should not be tolerated in workplaces,’ she said.
‘[The worker] deserves this outcome, but he did not deserve to put in this situation by his employer, nor did he deserve the stress this had inflicted upon him and his family.’