WHAT IS AN EMPLOYER'S OBLIGATION TO OFFER ALTERNATIVE DUTIES TO AN INJURED WORKER?
Many workers who suffer injury in the course of their employment are able to do alternative duties. However many employers can be reluctant to offer injured workers alternative duties even though the Safety Rehabilitation and Compensation Act 1988 (SRCA). Under the SRCA, an employer has speciﬁc statutory powers and functions under Part III of the SRC Act. These include arranging for a rehabilitation assessment, determining that a rehabilitation program should be undertaken, arranging with an approved rehabilitation program provider for the provision of a suitable program and ensuring suitable employment is provided.
Nonetheless the reality is that even in large organisations like Telstra and Australia Post, employers often argue that it is not practicable to offer suitable employment to an injured worker. However, a recent decision of Watts v Australian Postal Coporation  FCA 370, may mean that large corporations will not be able to get away with chucking workers with injuries or health conditions (whether work related orotherwise) on the scrap heap.
The facts of the case were that Ms Watts, a bid manager for Australia Post, suffered a psychological injury which was the subject of a workers compensation claim. Ms Watts was able to continue working but in 2010, Australia Post moved to manage her position under its “Non work related medical restrictions policy.” In mid-May 2010, Australia Post directed Ms Watts to take sick leave and not attend for work on the basis that it was not satisfied she was fit to perform her role as a bid manager, and there were no modifications or restrictions it considered were reasonably available to allow her to do so. In other words, Australia Post did not permit Ms Watts to continue in the position she had been occupying as part of her return to work program. Justice Garling summarised the position as follows, “Delay, prevarication, lack of cooperation, stubborn adherence to process and some obstinacy on both sides all contributed to two years passing without Ms Watts returning to work. She used up her sick leave, her annual leave and from 4 August 2011 had to take leave without pay.”
Ms Watts lodged a complaint under the Disability Discrimination Act 1992 (DDA) on the basis that she should have been able to return to work, and transition back into her position as a bid manager, because the employer could have made “reasonable adjustments” which would have enabled her to continue at work.
Judge Mortimer found that “Australia Post contravened the DDA by engaging in unlawful discrimination on the ground of Ms Watts’ disability; namely, her disorder, illness or disease that affected her thought processes, perception of reality, emotions or judgment or that resulted in disturbed behaviour, within the meaning of s 4(1) of the DDA. The contraventions occurred between May 2010 and April 2011, on the basis of a failure by Australia Post to make reasonable adjustments for Ms Watts so she could remain at work. She was denied the ability to attend work, exercise her skills, be able to use her sick and recreation leave as she chose, all of which are benefits associated with her employment. She is entitled, with some qualifications, to compensation consisting of the re-crediting of her leave and other entitlements, with effect from June 2010 because that is consistent with her case at trial. She is not entitled to compensation for loss of income for the period after 21 April 2011, which includes the period she was on leave without pay, as I have found there was no unlawful discrimination by Australia Post during this time.”
Judge Mortimer also found that Ms Watts was entitled to general damages (damages for pain and suffering) which were fixed in the sum of $10,000.
Essentially Judge Mortimer found that an employer is required to make “reasonable adjustments” to enable an injured worker or any employee suffering from a disability to return to or remain at work. In the case of Watts, Judge Mortimer found that it was possible for Australia Post to make adjustments without suffering “unjustifiable hardship” to use the words of the DDA. Further the onus is on the employer to show that reasonable adjustments would result in the employer suffering unjustifiable hardship.
This judgement means that large employers like Telstra and Australia Post and indeed any employer who is covered by the SRCA will probably struggle to show unjustifiable hardship in making reasonable adjustments to allow an injured worker to remain at, or return to, work. This case is a victory for common sense and for those many workers who following an injury at work risk being thrown on to the scrap heap by employers who don’t wish to take the time or put in the effort to return injured workers to meaningful employment.”
DO INJURED WORKERS HAVE TO ATTEND FITNESS FOR DUTY ASSESSMENTS?
Injured workers or those suffering from health conditions will often be called upon by their employer to attend a “fitness for duty” assessment. Whilst employers clearly have a duty to provide work which is safe and appropriate where a worker is suffering from injury or illness, for the individual involved, a fitness for duty assessment can flag attempts to terminate employment. Consequently, fitness for duty assessments can create anxiety and uncertainty for workers who may already be struggling to hang on to their jobs.
In a matter of Grant v BHP Coal Pty Ltd  FWCFB 3027 (18 June 2014), the Fair Work Commission considered a situation where BHP Coal directed a worker who was employed as a boiler maker to attend an appointment that had been arranged with their nominated doctor for an opinion on whether the worker was fit to return to work. When the worker refused to attend the appointment, BHP terminated his employment.
The Fair Work Commission full bench ruled that the termination of employment was lawful and that the direction to attend the occupational physician was a reasonable direction.
This decision clarifies that workers who refuse to attend assessments by a company appointed doctor do so at their own peril and potentially put their employment at risk. Having said that, it is always a question of what is reasonable and there may be circumstances where it is reasonable to decline to attend a fitness for duty assessment.
In addition, injured workers can be required to attend medico legal assessments for the purpose of their Comcare claims. Unreasonably refusing to attend such an assessment will result in a suspension of your entitlement to receive incapacity or loss of earnings benefits [s37(8) of the Safety Rehabilitation and Compensation Act].
The other issue that often arises for injured workers is whether they have to attend the company doctor for the purpose of treatment. Workers may choose to be treated by the company doctor but it is preferable for workers to attend a doctor of their own choice who is more likely to provide independent advice and support. In other words, workers have the right to choose to be treated by any doctor of their choosing.