Daily hire employee wins compensation for denial of work

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Daily hire employee wins compensation for denial of work

An employer is not in a position to override acceptable medical opinion at the expense of an employee deemed fit to work.

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An employer is not in a position to override acceptable medical opinion at the expense of an employee deemed fit to work.

The AIRC has ordered Australia Meat Holdings Pty Ltd to pay a daily hire employee, who had been cleared to return to work, the month’s wages she lost when it refused to re-employ her pending a specialist’s report on her risk of re-injury.

Background

The Australasian Meat Industry Employees Union (AMIEU) applied for a dispute settlement on behalf of an employee of Australia Meat Holdings Pty Ltd engaged as a packer at the company’s Townsville plant.

The employee had worked for AMH for approximately 14 years and had recently submitted her first workers’ compensation claim. The claim was accepted, but the employee did not actually miss any time at work, rather, her workplace provided alternate duties.

She was certified fit to return to work, but AMH expressed concern she might re-injure herself. AMH told her not to return for normal duties until it had a specialist report stating that she posed an acceptable risk. The employee was cleared by the specialist, but the process meant she was absent from work for nearly one month without pay.

The AMIEU contended that the employee had been cleared to resume normal duties and that but for the actions of AMH she would have performed (and been paid for) those duties for the whole month.

The employee was engaged on regular daily hire outlined in clause 14 of the Townsville plant’s enterprise agreement (EA). This arrangement meant that, unless otherwise notified, she was required to attend work at the normal time each day.

AMH argued that clause 14 provided it with the right to direct the employee not to attend for work (and to withhold wages) on the days it was unsure about her risk of re-injury.

The union complained bitterly about the company’s reliance on this clause, contending that regular daily hire is not applicable in these circumstances, nor was it intended to be when it the AMIEU agreed to include it in the EA.

The AMIEU argued that the purpose of regular daily hire is to allow flexibility to the employer to not - or not fully - operate the plant when production is not possible for reasons outside the employer’s control.

The union contended that refusing the employee work amounted to a breach of the EA’s length of service provisions, which compel an employer to engage and retrench employees, including daily hires, according to their length of service.

Findings

Commissioner Bacon said that the reason AMH did not provide the employee with her length of service rights was because the company was not certain whether, upon the resumption of her normal duties, the risk of re-injury was at an acceptable level.

This was despite the fact she was fit to return to work. The commissioner commented: ‘It is difficult to conceive the circumstances in which a medical practitioner would issue such a certificate knowing that if normal duties were resumed the likelihood of re-injury was unacceptably high.’

The commissioner said that while the company was entitled to its concerns, this did not give it a right to deny the employee her rights to employment according to seniority. ‘If … AMH does not want her to attend the plant because of its uncertainty about the risk of re-injury then AMH must pay [the employee] because there is no provision in the EA that entitles AMH to withhold payment in such circumstances.’

She said the company could have put the employee on alternative duties, paid her while directing her not to attend for work, or allowed her to work pending the specialist’s report on the grounds that she had been medically cleared and was unlikely to re-injure herself in the short time it took her to be reassessed.

See: The Australasian Meat Industry Employees Union and Australia Meat Holdings Pty Ltd, AIRC PR946215, 30 April, 2004.

 

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