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How to get your employer to provide work to you, if you have a work injury? Your rights explained.

What are the obligations of an employer to provide employment to an injured worker? What is the mechanism by which an injured worker can force an employer to provide such employment?

In a previous article, when talking about a worker’s rights, if they have been dismissed on medical grounds, I touched on this. This article will explore in greater detail the answers to the above questions.

A useful and potent mechanism exists under Section 18 of Return to Work Act SA, for an injured worker to seek and, at times force, the pre-injury employer to provide employment to him or her.

Section 18 essentially provides that if a worker is incapacitated for work in consequence of a work injury, and is able to return to work, (on either a full-time or part-time), the employer, from whose employment the injury arose, must provide suitable employment for the worker, so far as reasonably practical, being the same as, or equivalent to the employment in which the worker was working, immediately before the incapacity. This is the primary obligation of the employer, but the obligation does not apply in certain circumstances, described below.

The obligation does not apply if it is established: that it is not reasonably practical to provide employment in accordance with Section 18 (the employer needs to prove this); or the worker left the employment of that employer before the commencement of the incapacity; or the worker terminated the employment after the commencement of the incapacity; or new or other employment options have been agreed between the worker, the employer and Return to Work Corporation; or the worker has otherwise returned to work with the pre-injury employer or another employer.

It is important to understand, that if the employer terminates the worker’s employment, then that does not remove the obligation.

Now, let us look at the process.

Step 1: The worker provides a written notice to the employer confirming that he or she is ready, willing and able to return to work with the employer; and provides information about the type of employment that the worker considers that he or she is capable of performing.

Step 2: If the employer fails to provide suitable employment within one month after the worker’s written notice (the due date), the worker can apply to the South Australian Employment Tribunal (SAET), within one month of the due date (or such later time, if SAET allows an extension of time) for an Order of SAET, that the employer provide to the worker, employment.

Step 3: A consideration than occurs as to whether any of the exceptions (outlined in the 5th paragraph above), apply. As indicated above, the onus is on the employer to prove that it is not reasonably practical for the employer to provide employment. If any of the exceptions apply, the application will not be successful. If none of the exceptions apply, then Step 4 occurs.

In addressing whether it is reasonably practical to provide employment, SAET will have regard to various matters, including the worker’s physical capacity; his or her underlying experience, training, skills, qualifications and aptitude; the course of any return to work process; the size, nature, capacity and operational circumstances of the employer’s business; and the utility of the proposed suitable employment, including the cost and inconvenience to the employer.

Step 4: SAET decides whether it is satisfied that it is not unreasonable for the employer to provide employment to the worker. The worker has the onus of persuading the Tribunal on the balance of probabilities, that the Tribunal should be satisfied that it is not unreasonable for the employer to provide specified employment. If the Tribunal is satisfied, it must order the employer to provide to the worker, employment specified by the it, unless it determines otherwise. This means that the Tribunal will still consider matters which may discourage the Tribunal from making an order for the provision of employment. These matters may include evidence of alleged misconduct, or workplace conflict, which might compromise the ability of the worker and employer to maintain or renew a productive employment relationship; or ongoing operation developments e.g. actual or pending retrenchments; or other circumstances which may have had or may have an adverse impact on the employer’s ability to provide or to continue to provide suitable employment.

Step 5: If an Order is made by SAET under Step 4, and the employer fails to comply with that Order, the worker can apply to Return to Work Corporation for financial support in the form of weekly payments, and the Return to Work Corporation must provide such financial support but only to a date being 2 years from the date of the incapacity.

Concluding remarks:

The quality of information provided to the employer in Step 1, is important. Such information should include current medical evidence detailing the workers capacity for work, and any limitations or restrictions; and a full and detailed description of the jobs and/or duties within the employer’s organisation, that the worker considers that he or she is capable of performing.

A proper detailed and reasoned notice, may result in the employer providing employment, without the need to make application to the Tribunal. There is also provision in the legislation, for reasonable legal costs incurred by the worker, to be paid by the employer or Return to Work Corporation, subject to some monetary caps.

If you are injured at work and need advice on your compensation entitlements, or need further advice about getting back to work, or preparation of relevant documents, please contact an expert compensation lawyer here at LawCall for a no obligation initial free consultation.

Written by
Graeme Kirkham
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