Did you know that in NSW an injured worker who has been terminated because of his injury can seek reinstatement when the (injured) worker becomes fit for employment (even with some restrictions) within 2 years of the termination.
Injured workers in NSW can seek reinstatement within 2 years of termination
A 2012 decision of the Industrial Relations Commission in Chau v Visyboard Pty Limited(2012) provides a strong warning to NSW employers that there can be serious consequences for the employer where they sacked an injured worker whose injuries have caused them to become unsuitable for the inherent physical requirements of their former job/role.
With the new Workers Compensation reforms in NSW, most workers will or have seen their entitlement to weekly compensation benefits end after two years of compensation payments, and reinstatement applications may just be an option for some.
It is important that an application for reinstatement must be brought within two (2) years of dismissal.
Also don’t forget that the Workers Compensation Act 1987 provides that an employer commits an offence if the injured worker is dismissed because the worker is not fit for employment as a result of the injury in the first 6 months after he became unfit.
The Chau case
Chau (the injured worker) was a machine operator employed by Visy. He suffered a back injury during the course of his employment in 2005 and was subsequently absent for various periods in each of the years until his termination on 8 July 2011.
The reason given for termination was that Mr Chau was incapable of performing his pre-injury duties now or in the foreseeable future.
Three months after his termination Chau produced to Visy a medical certificate certifying that he was fit to resume work and he forwarded a letter requesting a return to work immediately in a full time capacity in his pre-injury position as a machine operator. however, Visy did not reinstate Chau.
Chau then sought reinstatement under Section 242 of the Workers Compensation Act 1987.
Prior to Chau’s termination Visy obtained an independent medical assessment which noted Chau was fit for his pre-injury duties status but was at risk of aggravating his underlying degenerative condition and he should avoid heavy manual handling and repetitive awkward lifting. It was noted unrestricted pre-injury duties did have a risk of aggravation and that Chau’s spinal condition would worsen over the years.
Visy determined to terminate Chau’s employment on the basis that he was unsuitable for the inherent physical requirements of his former role/job.
Section 241 of the Workers Compensation Act 1987 provides that an 9injured) worker may apply for reinstatement of employment of a kind specified in the application if they produce to the employer a certificate to the effect that the worker is fit for employment of that kind.
Reinstatement order cannot be made more than two years after the injured worker was dismissed.
The reinstatement must be to employment of a kind that is available and that the employer can reasonably make available for the (injured) worker.
In Chau’s case the worker produced a medical certificate demonstrating he was fit for work and the Commission determined it was appropriate for Visy to reinstate the worker subject to the provison that the employer provide a direction that Chau avoid repetitive and awkward lifting and he not lift more than 20kg in a static lift or 16kg in a dynamic lift.
The Court directed that Chau (the injured worker) shall at all times comply with the direction.
In addition, Visy was ordered to pay compensation to Chau, being his ordinary weekly rate of pay, less any workers compensation payments received from the date of his termination until the date of his reinstatement.
The Commission however noted that the power to order reinstatement is a discretionary decision and it is necessary to determine the fitness for employment based on the medical evidence.
In this case the medical evidence stacked up and Chau was fit for pre-injury duties although there was a need to restrict those duties as a consequence of the potential risk of re-injury.
The Commission also considered it was practical for Visy to make the modified position available as the machine required three persons to attend the machine and other employees could assist Chau to lift weights above the restriction the Court imposed.
The Commission noted the onus on the employer was simply to issue a direction to Chau and to ensure that he understands the direction and to monitor compliance. The Court furthermore stated this did not impose an unfair burden on Visy.
The Commission noted that to resist a Reinstatement Application the onus was on the employer to satisfy the Commission that the roles of machine operator and assistant machine operator were either not available or that it was not reasonable for the employer to make them available. It was noted that “available” does not mean “a pre-existing specified position designated by the employer which is vacant”. The term “available” is taken to mean “another position was of avail, to, capable of being used by, or at the disposal or within reach of, the employer – whether or not it was vacant at the time.”
The Commission found there was no evidence that Visy was unable to reasonably make available to Chau the work of the machine operator or an assistant machine operator and accordingly, the reinstatement Order was made.
You can read the full text of the legal case here: Chau v Visy Board Pty Ltd 
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