, October 1, 2019
The business failed to provide the 23-year-old employee with “an alternative range of suitable duties” after a knee injury obstructed him from performing his normal responsibilities as an aviation protection officer, according to an FWC transcript released Friday.
Although the former employee claims the injury was caused by operating a parcel x-ray machine while on the clock, he was denied workers’ compensation.
The business claimed the need for surgery was from a degenerative condition rather than a workplace injury.
After two and a half years, during which time the employee remained absent from work to allow his workers’ compensation dispute to progress, a monetary settlement was finally paid.
When he returned to work, the business insisted on a fitness-for-duty assessment through an independent medical examiner.
In May, the Final Occupational Medical Assessment (FOMA) confirmed the employee was unfit to carry out his duties as an aviation protection officer.
Up until this point, Workplace Law managing director Athena Koelmeyer tells SmartCompany the business was “on the right path”.
In the following meeting, however, the employee contested his unfitness for duty, but was terminated on the basis of being unable to perform his role as an aviation protection officer.
“He was out of the workplace for a long time… I think what happened is they really lost patience with the whole thing,” Koelmeyer says.
“Employers should bear in mind that it is a long, tedious process. Don’t lose patience because you’ll wind up with decisions like this one.”
In court, the employee argued the termination letter was factually incorrect in stating there was an agreement he was unfit for standard duties. He also argued the details were off, with the date misspelled and the location of his employment inaccurate.
The FWC concluded the business had failed to provide the former employee with the opportunity to challenge the FOMA by engaging another medical professional. It had also failed, according to the transcript, to provide the former employee with alternative responsibilities until he was deemed fit for APO work.
The FWC ruled the former employee will receive eight weeks of back pay, the minimum length of time it determined he should have been employed for after he was unfairly dismissed in May.
The FWC determined the business did not owe compensation for shock or distress.
Small- and medium-sized businesses are more likely to suffer from injury compensation claims and return-to-work processes because they lack the resources larger corporations have access to.
“Sometimes, the time that is required to deal with your obligations properly is frustrating, particularly for small-to-medium enterprises, because that one person can be half the team,” Koelmeyer explains.
“’Temporary’ in Fair Work Act language is three months. The employee being out for a reasonably long period of time imposes an unfair burden on the people who are left in the team, and secondly, work is not being done.
“You’re left in a difficult position. You can’t go out and employ a new person because you can’t take someone’s job away while they’re injured. You’re stuck as an employer.”
There are no quick fixes to this issue, but there are resources SMEs should draw on if an employee is injured in the workplace.
Koelmeyer says the first step is to speak to the Fair Work Ombudsman, which is free and has multiple contact points. She also recommends getting in touch with relevant industry associations where possible.
“That’s what they’re there for — to answer tricky questions,” she says.
“The insurer is not just there for the employee. They’re also there to support you as well as the worker.”
Finally, Koelmeyer argues this is a “difficult path to tread” and suggests paying for legal advice.
“It’s a complex area. It’s very legalistic. It’s not very often that I would say ‘ring your lawyer’, but this is probably one of those times to ensure you’re stepping through this minefield safely.
“Just be aware of all these obligations. You might not think you have such a weight against you but you do.”
What do employers owe injured workers?
Employers must ensure the workplace is as safe as possible under the Occupational Health and Safety Act guidelines, which differs by state. Return-to-work information should also be made available.
When it comes to work-related injuries and illnesses, the employer’s main role is to plan for the worker to return to work.
There should be an official return-to-work coordinator to manage this from the employer’s end. In the case of small businesses, this is typically the owner or HR specialist.
The return-to-work coordinator is required to return employees to either their pre-injury role with the same duties, or in some cases an alternative role with more suitable duties. The details of this arrangement must be made in writing.
The employer is obliged to do this until the original contract of employment ends.
As the worker returns to work, employers should monitor their progress.
Employers also need to assign an agent to engage with WorkSafe to manage any claims for compensation. Agents can also assist through the process of returning the employee to work. Alternatively, WorkSafe could approve businesses as a self-insurer to manage injury compensation claims internally.