According to the Victorian Equal Opportunity & Human Rights Commission – and NOT to our surprise- one of the most common complaints to the Commission is that employers refuse to consider letting injured workers return to work on reduced duties or before they are fully recovered. Instead, injured workers are told, “we are not going to accommodate you” or “we have no suitable work for you based on your statement of capacity”.
Employers have an obligation to help injured workers return to work and to ensure that they are not treated unfavourably because of their injury or illness.
It is interesting to see that much of the complaints the Commission receives are so much in line with the painful stories aworkcovervictimsdiary receives -loyal injured workers are either refused return to work by their employer(s) and are sacked instead for being injured through no fault of their own (and often through the fault of their employer(s)); either the injured workers are forced, pressurised and harassed half to death by their workcover insurance case managers to return to work prematurely, under various threats, only to be re-injured, or made much worse. Simple injuries can become “serious injuries” because of this $ incentive-based practice, as countless injured workers have testified. In one way or the other it may explain why our return to work “rates” are pretty appalling; at the end of the day it is – again – the injured worker who loses out (and cops the blame).
Returning to work after work injury or illness :Vic Equal Opportunity & Human Rights Commission
Returning to work after injury or illness
Supporting an injured worker to return safely to work as quickly as possible makes good business sense. An ‘injured worker’ includes a person with a temporary or permanent disability, physical or otherwise.
Getting back to work can reduce the financial and emotional impact on a worker and their family, and can be an important factor in helping them recover and return to normal life.
When the worker does return, an employer should ensure that they are given appropriate duties and assistance while they recover from the injury or illness. This might include making reasonable adjustments to the workplace, although these should not cause the business unjustifiable hardship.
But a requirement that a worker must be fully fit before returning to work may be unfavourable, depending on the circumstances.
What the law says about disability discrimination
In Victoria, it is against the law to discriminate against an employee because of an injury or illness, including a work-related injury
Under the Equal Opportunity Act 2010, employers have a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible.
Employers are legally responsible for acts of discrimination, bullying and harassment, sexual harassment, victimisation and racial and religious vilification by their employees or agents that occur in the workplace or in connection with a person’s employment, unless they can show they have taken reasonable precautions to prevent such acts.
(Equal Opportunity Act 2010 – Key terms explains the concepts you need to understand to make sure you know your responsibilities.)
The Equal Opportunity Act 2010 applies to employers of all sizes, and covers all types of workers – including full-time, part-time and casual employees, agents and contract workers, and trainees and apprentices. It applies to all stages of employment, including recruitment, returning to work after injury, illness or pregnancy, and dismissal and retrenchment.
Discrimination against injured workers includes:
- sacking or demotion
- denying or limiting access to promotion, transfer, performance bonus pay, training or any other benefits
- unreasonable workplace policies, practices and procedures that the injured worker cannot comply with.
An injured worker needs to be given time to recover and be accommodated in their return to work, where reasonable. Employers may also have obligations to keep an injured or ill worker’s position open under other legislation.
Reasonable adjustments are changes that allow people with a disability to work safely and productively.
Under the Equal Opportunity Act 2010 employers are required to make reasonable adjustments for a person with a disability who:
- is offered employment, or is an employee, and
- requires the adjustments in order to perform the genuine and reasonable requirements of the employment.
Many employees with a disability will not need any workplace adjustments. Some may need only minor changes or adjustments to their work hours or the performance requirements of the job, while others may require specific equipment or some structural change to the workplace.
Tools to download
- Returning to work after injury or illness: Overview (PDF)
- Employer checklist: Returning to work after injury or illness (PDF)
- Frequently asked questions: Returning to work after injury or illness (PDF)
Just a note from the “pros” :
In some cases a discrimination case can interfere (negatively) with a workcover claim litigation. For example, even if your employer ill-treated you and unlawfully sacked you based on your injury, if you are illegible for common law damages claim, and it comes to arguing your “capacity for work”, you and your lawyers may just have that nail (for their coffin) because, in this case, it was your employer who said you could no longer work because of your injury. See what we mean? It would be quite hard for your employer, red faced, to argue otherwise in a court of law….
It all depends on your individual circumstances and the severity of your injury….
[Posted on behalf of workcovervictim who remains very unwell unfortunately]