Evidence needed to justify reinstatement of injured worker

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Evidence needed to justify reinstatement of injured worker

The AIRC declined to order reinstatement of a worker as there was insufficient evidence to demonstrate that he could resume his previous role.

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The AIRC declined to order reinstatement of a worker as there was insufficient evidence to demonstrate that he could resume his previous role.

Senior Deputy President O’Callaghan stated that once a decision is taken that reinstatement is inappropriate, the Commission will then look at the question of whether compensation is justified.

In this case no compensation was ordered as the applicant had already received money to cover severance payments.

Background

The applicant had been on workers compensation and then modified duties in 2002. He subsequently returned to full duties around July 2003.

He and two other employees were made redundant on 7 November 2003. He was paid two weeks’ pay in lieu of notice, approximately $3000 redundancy pay and his accrued annual leave, sick leave and rostered day off entitlements.

On 20 November 2003, the employer received a workers compensation claim which related to an injury the applicant incurred on 30 October 2003, prior to the termination of his employment. This claim was accompanied by a Prescribed Medical Certificate asserting that he was unfit for work.

Further Prescribed Medical Certificates were provided, the most recent of which had allowed the applicant to return work on modified duties of work of up to four hours a day for three days per week with no bending, reaching or lifting of weights more than 5 kg.

The applicant sought reinstatement after the employer refused to provide him with a position.

Reinstatement not appropriate

The senior deputy president concluded that reinstatement of the applicant to his previous position, or to another position would not be appropriate.

The applicant had not proved that medical advice established that he would be able to undertake the range of functions associated with his original work function. On the medical advice available, the AIRC considered that reinstatement would impose a future productivity burden on the employer.

Further, the AIRC considered that reinstatement would create potential occupational health and safety or welfare risks for other employees involved in lifting activities with him and that it would disrupt the efficient work of other employees.

The senior deputy president continued:

‘I have also considered the possibility that Mr Davidson may have difficulty finding alternative work if he is not reinstated. There is no evidence before me in this respect, other than the medical and occupational therapist's advice which indicates that Mr Davidson is able to undertake some work.

There is nothing before me that indicates that Mr Davidson has looked for other work opportunities. In these circumstances, I cannot conclude that the risk of long-term unemployment is such that it warrants Mr Davidson's reinstatement in the face of numerous other factors that mitigate against reinstatement.’

No valid reason for redundancy but no compensation

The AIRC concluded that there was no valid reason for the termination of the applicant’s employment on the basis of redundancy which was solely related to the operational requirements of the employer's business.

However, the medical restrictions on the applicant went to the heart of the vast majority of the work functions available at the employer.

The AIRC did not consider that modified work arrangements or duties had been established as practical in the work environment.

On the basis of the limited information provided, the prognosis for the man’s recovery was problematic and complicated by changeable medical restrictions.

There was no unfettered obligation on the employer to employ him in this situation under the Workers Rehabilitation and Compensation Act (SA).

Senior Deputy President then concluded:

‘There is no dispute that Mr Davidson has, since the termination of his employment, been paid his average weekly earnings under the workers compensation scheme. Additionally, Mr Davidson received a severance payment consistent with the provisions of the Agreement. …

… I do not consider any amount to be appropriate in the circumstances of this matter.

Mr Davidson has, since the termination of his employment, already received payments in excess of those that would have applied had he not been terminated when his severance payments are taken into account.’

The AIRC concluded that the termination of the applicant’s employment was harsh, unjust or unreasonable, but declined to reinstate the applicant or to order a payment of an amount in lieu of reinstatement.

Davidson, Heath v Budget Glazing Pty Ltd – AIRC – O’Callaghan SDP- 27 July 2004

Related:

Fine balance: AIRC orders injured workers reinstatement

Compensation in lieu of reinstatement considered

Onus of proving reinstatement is impracticable rests on the employer: IR court

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