Friday, 29 September, 2017
Therese MacDermott, CONSULTANT
A common response to a situation when a worker is injured is to assign the worker to a different role for a designated period, often referred to as “light” or “suitable” duties, while he or she is recovering from an injury. This response is generally dictated by the requirements of workers’ compensation legislation and may also be undertaken to fulfil an employer’s obligations under anti-discrimination legislation. However, employers can feel pressured to retain an injured worker in an alternative role long after it becomes clear that the worker cannot return to his or her pre-existing duties, and after the requirements of workers’ compensation laws are satisfied.
In this article, we consider what obligations an employer must satisfy under disability discrimination legislation, in order to terminate an injured worker’s employment safely on the basis that he or she is unable to perform the inherent requirements of the particular work, as they cannot return to their pre-injury duties, even with reasonable adjustments. While an injured worker may seek to be retained permanently in a re-assigned role, this is not what the legislative framework requires. What is important is the capacity to fulfil the duties for which the injured work was employed, albeit with reasonable adjustments, rather than characterising the alternative role itself as a reasonable adjustment.
Assisting a worker to return to their original role
Courts have found the requirements of the Disability Discrimination Act 1992 (Cth) (“DDA”) to make reasonable adjustments are directed towards alterations to the job or other modifications for the person, which are designed to facilitate the person being able to do the work that he or she was employed to do.
An illustration of this point is a recent case1 where a worker injured his hand at work and subsequently undertook suitable duties on a part-time basis, but was ultimately found to be unfit to perform his pre-injury duties as a “fitter”. The medical evidence in this case was to the effect that the injured worker could no longer perform the “fitter” duties and could only return to work for permanently modified duties, such as office work. The court found that the employer’s obligations arising from the DDA in this context were to make reasonable adjustments to the injured worker’s situation so that he could continue to work in the position for which he was employed, that is the “fitter” position. It was not to find him other employment in an alternative role.
One qualification to this point is that if an employer has a history of allowing injured workers to remain long term in alternative roles, the application of the strict letter of the law may raise questions about the reasonableness of this response. If the injured worker remains in the alternative role long-term, this could give rise to a situation where it is taken to be the substantive role going forward against which capacity is assessed. In such circumstances, it is generally advisable not to leave the matter unresolved indefinitely, but to make a clear decision regarding any incapacity to perform the pre-injury role. A new contract to employ the person in the alternative role can then be entered into if that is negotiated between the parties. Employers also need to be mindful of any significant differences in salary and entitlements between the two roles, and negotiate contractual terms to reflect this.
Making appropriate enquiries
If an employer is contemplating terminating an injured worker’s employment based on his or her inability to perform the inherent requirements of the job, it is incumbent on the employer to make enquiries about a worker’s capacity at that point in time. Generally, this requires a consideration of the feasibility of a return to work (including the possibility of a return to work in a reduced form in the short term), with a view to the worker returning to the pre-injury position in the foreseeable future.
The type of information relevant to these inquiries includes medical reports provided by the worker and any other reports that may have been obtained by the employer from an insurer or rehabilitation provider. Where this information is insufficient to enable the employer to make a fully informed decision, it may be appropriate, for example, to obtain the consent of the worker to release medical information from their treating doctor or specialist. An alternative approach is to request the worker to attend a medical assessment arranged and paid for by the employer. An injured worker is required to co-operate with such a request.
A failure to give the injured worker an opportunity to consider or propose any adjustments prior to a termination of employment can impact on how an assessment of the capacity of the individual is viewed by a court or tribunal, particularly in unfair dismissal cases. The importance of consultation with an injured worker is highlighted in a recent Fair Work Commission decision,2 where it was found that a nurse had been unfairly dismissed following a non-work related injury. The Commissioner stated:
“…I am satisfied that the decision to terminate Ms Maharaj’s employment was unreasonable. Northern Health may well have been able to satisfy itself as to the correctness or otherwise of its position had it undertaken even the most basic of investigation with Ms Maharaj. It did not do so and there is nothing before the Commission that suggests that Ms Maharaj could not have returned to work, to her pre-injury duties on a graduated return to work plan.”
The appropriate time to consider a worker’s ability to perform the pre-injury role is at the time that termination is being considered. Workers’ compensation legislation in each state and territory also set timeframes for various matters, such as how long alternative duties need to be provided, and need to be factored into managing a return to work.
Another important timing factor is in relation to timeframes for a return to full capacity. If a medical report indicates that an injured worker is likely to return to full capacity to enable him or her to undertake their pre-existing duties within a nominated timeframe, then an employer will need to work with that assessment, including in some cases allowing access to different forms of leave, such as unpaid leave if necessary. This is different to a situation where the prognosis of a return to full capacity in the foreseeable future is poor. In this case, the argument that a person is not able to perform the inherent requirements of the job is strengthened.
- The duties undertaken in the pre-injury role are crucial to the assessment of incapacity.
- Act on medical information and obtain further reports to enable informed decision-making.
- Employing a worker permanently in an alternative role is not required, but may be an option that an employer is prepared to consider.
- Develop a comprehensive strategy as legal challenges may arise through a number of different avenues, including compliance with workers’ compensation obligations, disability discrimination and unfair dismissal.