A recent decision by the Workers Compensation Tribunal paves the way for the Tribunal to, in effect, review a Compensating Authority’s decision to release an employer from their Section 58B obligation to provide suitable duties and seek employment for an injured worker with a different employer.
In Lawless v Qantas Airways Limited & Anor [2013] SAWCT 40 (27 November 2013), the worker was employed as a baggage handler by Qantas Airways Limited (‘Qantas’) and from about 1997 suffered from a series of compensable injuries.
Until about June 2001 the worker had been able to return to his pre-injury duties. However after this, the worker became permanently partially incapacitated and was required to perform alternate duties. These duties were a mix of duties drawn from different classifications and departments and without the requirement to provide the worker with suitable duties the worker’s position would have been made redundant.
The worker continued to be provided with alternate duties on a full-time basis until about mid-2012. In early 2013 Qantas submitted to the Compensating Authority that it was not reasonably practicable to continue to provide suitable work to the worker because the duties that had been provided to the worker between 2007 and 2012 were an ad hoc collection of tasks from various roles that were never considered to be suitable employment, and did not collectively make up a “productive” role, and the worker had neither the physical or vocational capability to undertake other duties that were available.
On 14 March 2013, after considering Qantas’ submissions the Compensating Authority advised Qantas that it would release it from its obligation to provide suitable duties pursuant to Section 58B of the Act, and advised the worker that the focus of rehabilitation would shift towards obtaining employment with a different employer as there was no suitable role available at Qantas. The worker disputed this decision on 5 April 2013.
On 6 May 2013 the Compensating Authority approved a new RRTW Plan with a return to work objective of ‘different employer – different employment’. The worker also lodged a Notice of Dispute with respect to this RRTW Plan and, in particular, the change in the return to work objective.
Findings
His Honour Judge Hannon found that the decision of the Compensating Authority as to the application of section 58B(1) of the Act is an administrative decision, not reviewable under section 89A. However, he noted that such decisions may be subject to a prosecution.
His Honour then went on the find that Section 28B allows the Tribunal to review whether a RRTW Plan is unreasonable and, ultimately, concluded that the requirement in the RRTW Plan that the workers rehabilitation be directed towards different employment with a different employer, was unreasonable.
His Honour said that what is unreasonable will depend on the facts, but that in determining whether suitable duties are available the ‘…authorities indicate that, assuming a worker is physically and mentally able to carry out proposed suitable duties under appropriate workplace conditions, such duties will not be considered unsuitable simply because the employee is not satisfied with the nature of them, or because the employer might be put to some inconvenience in arranging for them or dealing with adverse reactions which might arise at the workplace as a consequence.’
His Honour found that Qantas adopted an inappropriately confined view as to what constituted “suitable” employment, by proceeding on the basis that suitable employment should be confined to “normal” productive positions, and the Compensating Authority had acted unreasonably in endorsing this view by providing a RRTW Plan which changed the focus of rehabilitation towards finding work at a different employer.
His Honour stated that his finding meant that, subject to any Appeal against his decision, the Compensating Authority must discharge its continuing obligation under Section 28A to establish a RRTW Plan by preparing a Plan which was not unreasonable in the manner identified – that is, by preparing a Plan which did NOT direct rehabilitation towards different employment with a different employer. This would, he said, impose on Qantas obligations to, at least, further investigate the provision of suitable duties (without improperly confining that investigation as they had done to date).
Message for Employers
This decision means that an employer could be placed in the situation where it is required to provide a permanently restricted worker with alternative duties for life if the Tribunal deems it unreasonable to return the worker to employment with a different employer.
His Honour’s decision was, in all likelihood, affected by the fact that Qantas is a large employer, and had been able to provide “suitable” employment to the worker for some years (even if that employment did not constitute an actual “real” role, and was not productive, in Qantas’ view). It may be the case that the Tribunal would be less likely to reach such a conclusion in the case of a smaller employer.
Nevertheless, this decision means that employers who terminate an injured worker’s employment after receiving a Section 58B “clearance” from the Compensating Authority may have to re-employ that worker if there is a challenge to a subsequent RRTW Plan which has a return to work objective with a different employer.
Employers considering terminating the employment of worker(s) who have a current accepted claim for workers compensation, should seek specialist advice before doing so.