Many so called Vocational Assessors you are referred to by workcover insurance companies, will use nothing more than computer testing for “suitable jobs”! This does not take into effect that many injured patients have a multiple of things the matter with them above their main diagnosis and may be socially and otherwise handicapped. A supreme court case in Canada made it clear handicap or impairment had to include ALL problems. There is no evidence counselling someone on a job possibility makes it happen in disabled cases. Canada Disability pension criteria had to be modified to include not just suitable jobs but AVAILABLE and giving substantive gainful employment – measures ignored by workcover insurance companies who will terminate cases for any excuse. I call this the “you could be a funeral director” scam.
Supporting an injured worker to return to work
An injured worker should be given sufficient time to recover from the injury and not feel pressured into returning to work.
When the injured worker does return, an employer should ensure that they are given appropriate duties and assistance while they recover from the injury.
Your employer is NOT allowed to sack you if you are able to complete the tasks inherent to the job, i.e. with reasonable ergonomic assistance.
This might include making reasonable adjustments to the workplace, although these should not cause the organisation unjustifiable hardship.
Reasonable adjustments are changes that allow people with disabilities to work safely and productively.
Examples of reasonable adjustments may include:
- telephone typewriter phone access for employees with hearing or speech impairments
- flexibility in weekly hours to allow an employee to attend regular medical appointments
- screen reading software for employees with vision impairments
- more regular breaks for people with chronic pain or fatigue
- desks with adjustable heights for people using wheelchairs
- dictation (voice recognition) software for injured people who can only use one non-dominant arm
- alternative computer mouse
- under-desk keyboard tray
- carry-bag on wheels
- docking station for laptop
- ergonomic chair/seating
Should an external Rehabilitation service provider be engaged (which is often the case) remember that the WorkCover Insurance company must provide you with a choice of at least 3 service providers. Do your research as, from experience, there are quite a few utterly useless rehab service providers out there I tell you (they are barely 20 years old, don’t listen to you and just decide on their own what you need and should work with! – Tip: always ask them to SHOW you how to work with the recommended equipment whilst pretending they have your injury (i.e no use a limb etc)).
Discrimination against an injured worker is against the law, regardless of whether the injury was sustained at work or outside the workplace.
When injuries are caused at work
An employer has certain legal responsibilities under the Accident Compensation Act if an employee is injured at work. Injured employees are only required to return to work when they are well enough to do so and they are entitled to access an occupational rehabilitation program, if required.
In addition, an employer must:
- hold the injured person’s position open for 12 months (52 weeks)
- help an injured worker return to their job within 12 months of an injury if they are capable of doing so
- help an injured worker to return to different or modified duties within 12 months of an injury, if they are fit for work but not able to perform their previous duties
Your employer is NOT allowed by law to terminate your employment, especially during the first 12 months following your injury. Should they do so or attempt to do so, contact your WorkCover Insurance company immediately,contact WorkSafe immediately (see below for more information).
Return to work plans
Following an injury, planning for an employee to return to work should begin as soon as possible and is mandatory.
An employer is responsible for assessing the type and level of support the injured worker will require and maintaining regular communication with the worker during the recovery period.
Planning for a return to work will involve setting realistic and progressive goals, in consultation with the injured worker and their health professional.
As part of this process, an employer is required to develop a return to work plan, which sets out the practical steps to assist the injured worker return to work, or how the injured worker will be supported to remain at work while they recover.
If the injured worker is able to work, the return to work plan must, by law, include an Offer of Suitable Employment.
An Offer of Suitable Employment is a written outline of the suitable duties that have been identified to support the injured worker return to work. Information on Developing and implementing a return to work plan – including all relevant forms and documentation – is available from Worksafe Victoria.
RETURN TO WORK OBLIGATIONS
Employers and workers both have “return to work” obligations where an injury has occurred at work.
Essentially, an injured worker must make a reasonable effort to return to work either in their pre-injury duties or other suitable duties. Making a reasonable effort can include attending medical or occupational rehabilitation appointments arranged by the insurer or returning to work on light duties in line with a doctor’s recommendation. If a worker does not comply with their return to work obligations, their weekly payments may be suspended or even terminated.
Employers now have new obligations which they must comply with, to the extent that it is reasonable to do so. Some of those obligations are to: provide suitable employment if a worker has the ability to work; provide a worker with their pre-injury employment if they are fit to return to work; plan a return to work; and consult with a worker, their doctors and a rehabilitation provider about a worker’s return to work.
From 1 July 2010, an employer’s failure to comply with an obligation is an offence. The maximum penalty is currently approximately $105,000. Also, injured workers can now request that WorkSafe prosecute an employer for a failure to comply with their obligations. If WorkSafe declines to prosecute, then the matter can be referred to the Director of Public Prosecutions.
If you have any questions about your return to work obligations, or if you believe your employer may have breached their return to work obligations, you better contact your lawyer for further advice.
Federal and State Anti-Discrimination legislation makes it unlawful to discriminate against someone on the basis of a disability/impairment. However the occupational health and safety legislation (OHS) requires employers to provide a safe workplace for their employees.
These obligations can be a fine line when an employer suggests/allocates “suitable appropriate duties” for injured employees (i.e. workers who have pre-existing injuries, or who are injured at work and are then certified fit to return on normal or light duties).
Restricting working hours, denying overtime or varying work duties (‘suitable duties) can all potentially constitute discriminatory conduct.
For example, a court may find that restricting the number of hours an employee recovering from surgery is allowed to work is discriminatory conduct. However, this conduct can be authorised if the employer can show that because the employee could not safely for example manoeuvre heavy machinery, the restriction was necessary to comply with the OHS requirement of ensuring a safe workplace.
Real workcover examples
H J Heinz v Turner5 (2002)
The court held that a workplace policy banning employees on restricted duties from overtime was discriminatory, but was authorised by law as it was a regime of work practice designed to ensure the health and safety of employees in compliance with OHS legislation.
NSWADT in Higginson v Cargill6
In that case, an abattoir worker had major surgery to his knee and was warned that if he slipped or fell he could lose the use of his knee completely. Because of the greater risk for this employee, the employer did not allow him to return to pre-injury duties on the slippery abattoir floor. However, the Tribunal held that the employee was not at a higher risk of slipping than a non-injured employee and that his injury did not prevent him from performing his pre-injury duties safely. Consequently, it was held that the employer discriminated against the employee.
The employer argued that the conduct was necessary to comply with its obligation to ensure workplace safety, but the Tribunal adopted a restricted approach to the statutory exemption. Under this approach, the employer must establish that there is a specific requirement in the other relevant Act relied upon. It must also be shown that the nature of the work and disability, when viewed objectively, leaves no option or discretion but to engage in the discriminatory conduct in order to comply with the requirement. In this case, the Tribunal held that the conduct was not necessary.
French v Sydney Turf Club7 – no discrimination
The Tribunal found that the employer discriminated against an employee by restricting her shifts to four hours. However, as her work injuries precluded her from safely lifting, bending, twisting or lifting loads from below the level of her thigh, the Tribunal found that, viewed objectively, the employee could not safely work a full shift as a bar attendant either with or without reasonable accommodation. Consequently the employer’s decision to limit Ms French’s working hours was necessary to comply with OHS obligations and was lawful.
Perlidis v Brambles Security Service8 – discrimination
Mr Perlidis worked as a member of an armoured vehicle car-crew. He strained his back at work and subsequently returned to work with medical certificates stating that he could lift only restricted loads. The employer decided that based on these limitations, Mr Perlidis could not be a member of any overtime car-crew. The employer argued before the Tribunal that the discrimination was lawful, as, when working overtime, it is important for safety that all members are able to lift full loads. The Tribunal disagreed and found that this was discriminatory conduct. It was held that there were other overtime duties that Mr Perlidis could have performed and therefore it was not necessary to restrict his hours.
An employer’s honest belief as to the employee’s best interests or to the effect of other Acts will not be a defence.