Provision of Suitable Employment Under Section 18 of the Return to Work Act 2014 (SA)

Decisions regarding the application of Section 18 of the Return to Work Act 2014 (SA) (the Act) are slowly trickling out of the South Australian Employment Tribunal. This is providing some more clarity, but a lot of questions still remain. Below is a brief summary of the decisions to date.

Walmsley v Crown Equipment Pty Ltd [2016] SAET 4

In Walmsley v Crown Equipment Pty Ltd [2016] SAET 4 the worker, Mr Walmsley, had been injured in compensable circumstances. The employer, Crown Equipment Pty Ltd, terminated his employment as, amongst other things, they considered he was unable to fulfil the inherent requirements of his pre-injury role as a result of his injury. Prior to the worker’s employment being terminated, he was performing a collection of modified duties which he had capacity to perform. The worker sought an order under Section 18(5) of the Act that he be provided with employment.

The employer argued that if it was to continue providing the worker with the collection of modified duties, it would be to their financial disadvantage as it would require them to essentially create a role that did not exist. However, His Honour Deputy President Judge Hannon found that the employer hadn’t established that it was not reasonably practicable to provide suitable employment in accordance with Section 18(1) of the Act.

His Honour then went on to find that it was not unreasonable for the employer to provide employment to the worker, and there were no grounds for him to exercise his adjudicative function to determine otherwise, and so ordered that the employer provide employment to the worker for which he was fit, and which as far as reasonably practicable was the same as, or equivalent to, the employment in which he was working before his injury.

It is also important to note in this dispute that His Honour considered that the fact that the worker’s employment had been terminated did not preclude him from seeking a remedy under Section 18.

Oldman v Department for Education and Child Development [2018] SAET 225

In Oldman v Department for Education and Child Development [2018] SAET 225, the worker was employed as a teacher before her injury, and sought an order under Section 18 of the Act that her employer provide her with suitable employment as a school counsellor.

The worker accepted that this would, in effect, constitute a promotion (and was also a position for which the employer argued selection was merit based), but argued that she had previously worked as a school counsellor while filling in for a colleague who was on leave. She had also previously applied for several school counsellor positions, but was not successful in obtaining them.

His Honour President Judge Dolphin considered whether the worker was “suited” and “fit” for the role of school counsellor, coming to the conclusion that her physical restrictions and limitations were inconsistent with the requirements of the role. Accordingly, His Honour found on this basis alone, it would be unreasonable for the employer to provide the worker with a school counsellor position.

His Honour went on to consider whether the position of school counsellor was, as required by Section 18(1) of the Act, “equivalent” to the position of teacher. He found that there was lack of equivalence between the two positions, in particular in the salary structure, the fact that the position of school counsellor would constitute a promotion, and the fact that there is a more “formal and school level determined path” to become a school counsellor, than a teacher.

As His Honour had found that the worker was not suited and fit for the position of school counsellor, and the position was not equivalent to her pre-injury role, he found that it was not reasonably practicable for the employer to provide the worker with employment as a school counsellor, and so declined to make the order sought by the worker.

Puhara v Return to Work SA (Flinders Adelaide Container Terminal) [2019] SAET 3

In Puhara v Return to Work SA (Flinders Adelaide Container Terminal) [2019] SAET 3, the worker, after suffering a compensable injury, sought an order for suitable employment pursuant to Section 18 of the Act, after having previously identified a variety of duties which he considered he was capable of performing.

Her Honour Deputy President Judge Farrell considered the medical evidence and what each of the duties proposed by the worker comprised. She was satisfied that the duties that the worker sought to be provided with would not put him at risk of re-injury, or of aggravating his injury such that it would prevent the order for suitable employment to be made. Further, given the range of duties that the worker was capable of performing, and the size of the employer’s operation, there were no operational reasons why the employer couldn’t provide suitable duties to the worker, and so it was reasonably practicable for the employer to provide suitable employment to the worker.

Accordingly, Her Honour found that it was not unreasonable for the employer to be ordered to provide the worker with suitable duties, and ordered the employer to provide employment to the worker.

Papaefstratiou v Department for Education and Child Development [2019] SAET 32

Finally, in Papaefstratiou v Department for Education and Child Development [2019] SAET 32, the worker suffered a compensable upper back injury in 2002. Immediately before the worker was injured in 2002, she typically worked two days per week in a contract role, and two days per week in a temporary relief teaching (TRT) role.

In 2015 the worker was engaged in contract work at Forbes Primary School and, as well as experiencing an increase in her back pain, was diagnosed with a psychiatric condition. She lodged a claim for compensation for the psychiatric condition – which was rejected – and sought another contract position that was not at Forbes Primary School. Since 2015, although the employer had offered – and the worker had undertaken – an average of two days of TRT work per week, the employer had not made any offers of contract positions to the worker. Accordingly, the worker sought an order that she be provided “with contract teaching work, not at Forbes Primary School, within her medical restrictions of four days per week in a stable teaching classroom with continuity of teaching…

The employer argued that the worker was no longer incapacitated as a result of her 2002 injury, and as such the obligation to provide her with suitable duties was not enlivened. However, His Honour President Justice Dolphin accepted the medical evidence that the worker remained partially incapacitated for her work as a teacher as a result of the injury sustained in 2002. As such, Section 18(1) of the Act obliged the employer to provide the worker with suitable employment, and His Honour found that the worker had “discharged the onus of demonstrating” herself to be suitable and fit for the employment she sought.

His Honour then looked at the work that the worker sought, and the work she had been engaged in immediately prior to her injury in 2002. His Honour considered that given who the employer was, there was no issue in providing the worker with employment at a location that was not Forbes Primary School and, further, whether or not the worker taught all of her classes in one classroom could be discussed and decided between the school and the worker’s doctors, based on the circumstances of the school and the worker’s medical restrictions.

Accordingly, His Honour was satisfied that it was “not unreasonable for the [employer] to provide suitable employment to [the worker]”, and, given that the worker had continued to be provided with two days per week TRT work, and the work she had been deprived of was two days per week contract work, ordered that the suitable employment being two days per week contract teaching work be provided.

Comment

These cases demonstrate that when it comes to disputes concerning Section 18, much will turn on the specific facts of the case, the employer’s organisation (for example, size, structure, and flexibility), and the role sought by the worker as compared to their pre-injury role.

On the face of it there is also a divergence in the Tribunal as to whether Section 18 can require an employer to provide a combination of suitable duties for an indefinite period, or whether it only requires an employer to provide suitable employment by way of a substantive role the same as, or equivalent to, the injured worker’s pre-injury role.

For more information, please contact:
Patrick Walsh

Patrick Walsh
Director
p.  +61 8 8124 1941
e.  Email me

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this report, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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