Unfair dismissal – injured worker’s light duties were part of her contract

modified-duties

Let’s face it, many injured workers are routinely sacked, simply because they were injured. Many employers will go to great lengths to find any possible excuse to sack an injured worker, even the most hard working and most loyal amongst us. What’s perhaps most disturbing is that many employers will play “doctor” and actually tell injured workers that they are unfit to perform their duties, even though the injured worker’s treating doctor(s) and specialists may have issued the worker with a certificate of capacity with some easy-to- accommodate restrictions (i.e. accommodated by $200 worth of ergonomic aides in the workplace); or worse, like in this case, the suitable job may actually be in line with the medical restrictions and part of the injured worker’s main contract.

We are sick and tired of being told we (injured workers) are malingerers and out for a “free holiday”, too lazy to return to work – whereas the main problem actually lies with our employers who, most often than not, chose to discard us on the trash heap. As many injured workers know, it is very difficult to find alternative employment once you have filed a workers compensation claim, and we can only assume that it has to do with liability issues in case we aggravate our injuries… unless of course employers prefer a healthy body over an injured one, given a choice.

Unfair dismissal – injured worker’s light duties were part of her contract

By workcovervictim3

In this recent (2013) unfair dismissal case, the SA Commission found light duties were an explicit part of the injured worker’s contracted role. The full text of the case can be read here: M v Adelaide Community Healthcare Alliance Incorporated t/as The Memorial Hospital [2013] FWC 1906

Background of the case

Ms M – who does not speak English very well- worked as a catering assistant at The Memorial Hospital (the Hospital) since 10 December 2001. This role involved pushing a heavy trolley and distributing trays of food, as well as general cleaning duties. At the end of 2008 Ms M was diagnosed with Carpal Tunnel Syndrome and in May 2009 underwent surgery.

Ms M had a corresponding workers compensation claim. She was subsequently certified fit to return to pre-injury duties from 26 May 2009. In the medical certificate of that date, the doctor noted that Ms M had advised that her duties had been permanently changed to the “doctor’s shift”. Another medical certificate dated 22 December 2009 repeated the diagnosis and that the “doctor’s shift” was again noted to be her permanent duties. Other medical certificates up to 13 February 2012 stated that Ms M was fit to perform light modified duties with various restrictions, including no repetitive use of hands and no lifting over 3kg.

Ms M’s change in duties to the “doctor’s shift” was by way of arrangement with the other employees, prior to her surgery. Initially she refrained from heavy lifting and pushing the large food trolley and this work was picked up by the other catering assistants. The nature of the “doctor’s shift” work was that a smaller trolley was used and no hot meals or drinks were transported.

Ms M claimed that from this point she progressed into solely performing the “doctor’s shift” duties by early 2010 and continued to perform these duties until her termination in February 2012.

In July 2011 an assessor was appointed by the Hospital to determine whether Ms M was pushing the trolley in a safe way and to assess her ability to work. A report was given to the Hospital, however, Ms M was not given a copy. She was also required to undergo a further medical assessment at the request of the Hospital in November 2011. Having requested copies of both reports, Ms M was told that the reports were the property of the Hospital.

In January 2012, the Hospital sent a letter to Ms M stating that she was unable to perform her pre-injury duties, and that her employment may be terminated.

She was also asked to attend a meeting with the General Manager on 1 February 2012 and to bring any relevant medical evidence that demonstrated that she could perform the inherent requirements of her position.

Ms M did not fully understand the letter, but forwarded it to her Union. She attended the meeting with a Union representative but was very upset during the meeting and did not fully understand all the issues at hand. She was given time off to recover from the meeting, as she – understandably- was very upset

The Hospital sent a letter dated 20 February 2012 terminating Ms M’s employment as of 17 February 2012.

Ms M brought a claim for an unfair dismissal remedy to the Fair Work Commission (the Commission).

Decision of the Commission

The Commission found that the “doctor’s shift” duties that Ms M was performing formed her substantive duties, as the evidence demonstrated that she was continually rostered on to these duties for a considerable period of time. Additionally, the Commission noted that the “doctor’s shift” involved tasks or a subset of tasks that formed an explicit part of the catering assistant role. As such, Ms M was not performing modified duties, but was performing substantive duties that formed part of her contracted role.

Therefore, there was no valid reason for the dismissal!

The Commission also found that the dismissal had been procedurally unfair as the initial letter sent by the Hospital would have been confusing and had the potential to shock Ms M, given her limited English language reading abilities and particularly as it stated that the Hospital’s doctor’s report found that she may never return to pre-injury duties. The Hospital never gave her copies of the evidence that concerned her, failed to allow her adequate time to provide a response and applied her termination retrospectively.

What can we learn from this decision?

In this case, the injured worker’s “light” duties were encompassed in  the role that she was initially contracted to perform. Her position as a catering assistant included carrying out the tasks that she was performing after returning from surgery, as well as those that she had carried out prior to her injury. Despite the actual work being “lighter” and not involving lifting or pushing a heavy trolley, this did not change the fact that she was still performing her role as a catering assistant.

As such, it is very important that injured workers have a good look at their Position Descriptions to ensure that they are aware of the precise tasks or duties that are designated to their position. Many injured workers may be shocked to discover that they were in fact illegally sacked as they were able to undertake the inherent requirements of their job (with or without some modification)

Related reads

Inherent requirements

If a person with a disability is able to carry out the essential activities (inherent requirements) of a job, the law says that they must be given the same opportunity to do that job as anyone else. The inherent requirements of a job are:

  • the fundamental tasks that define a job or category of jobs and that must be carried out in order to get the job done
  • not all of the requirements of a job
  • about achieving results rather than the means for achieving a result

For example, a worker might be required to take shorthand but is unable to do so because of a physical disability. In these circumstances, the worker might still be able to get the job done by taking messages on a Dictaphone and then transcribing these messages. Taking shorthand is therefore not an inherent requirement of the job because the job can be done another way. It would, therefore, be unlawful to refuse to give that person the job simply on the grounds of their inability to take shorthand.

More information about the “inherent requirements of a job” can be found on the Australian Human Rights Commission website. Also see the interesting and comprehensive fact sheet (Aus Gov).

Sacked injured workers can go to court

Employer ordered to pay compensation for refusing to employ injured worker

Note: before taking your unfair dismissal to court, please consult with a personal injury lawyer as these cases can interfere with workcover claims, in particular common law claims.



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4 Responses to “Unfair dismissal – injured worker’s light duties were part of her contract”

  1. Changing the boundaries by employers is a sport to some. A timely article. Only recently did I hear of an injured worker who was given appropriate duties for their injury. They were assessed by an ergonomist, all were satisfied the position was suitable. A very short time after the ergonomist assessment the employer notified the injured worker that they could no longer have any help from other staff members. The employer instructed all staff not to provide assistance to the injured worker. However it was acceptable for staff to help each other. This too was a health facility in South Australia. Playing Dr isn’t exactly a well thought out plan.

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  2. What can we learn from this unfair dismissal? The hospital’s Management intentionally “used” Ms. M’s poor English language skill to their own advantage to send to her misleading and hard to understand letters and I argue missing information too, this is just a standard tactic used by the insurance companies.

    But wait a moment…. the Union represented Ms. M so why there still was misunderstanding? Was the Union involved in a conflict of interests??

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    Xchangingvictim June 16, 2013 at 1:47 pm
  3. Depends if the union is a stakeholder in WorkCover.

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  4. The Key Point learned from this familiar treatment of injured workers is don’t count on Work Cover to do the right thing by injured employee’s, limit your trust in union representation and finally the best course of action is through Fair Work Australia.

    I feel sorry for Ms  M and her ordeal which so many of us know too well, however now that a judge has deemed her employer was unfair and used her lack of English and understanding to dismiss her, she will have to be reinstated to her position and her employer will now have to tread very lightly.

    It should however    never have come to that

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