Can the WCC Order Suitable Duties? by TurksLegal

Can the WCC Order Suitable Duties? By Mary Karekos | December 2007 Area of Expertise | Workers Compensation

Summary There is no power in either the 1987 Act or the 1998 Act to make an order for reinstatement of a worker. It follows by implication that the Registrar has no power to recommend reinstatement of an employee to suitable duties whose employment has been terminated by his\her employer. The circumstances differ for an employee who is still employed and regard must be had to Section 49(3) of the WIM Act.

Who Does This Impact? Employers and Workers

What Action Should Be Taken? For employees who are still employed, an employer must be able to prove that suitable duties are not readily available and\or that the suitable duties are not safe or within the employees restrictions or capabilities.

Obligation to Provide Suitable Employment Generally The employer’s obligations to provide suitable employment are covered in Chapter 3 of the WorkPlace Injury Management and Workers Compensation Act 1998. Section 49 of the Act provides: (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full time or part-time basis and whether or not to his or previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker. (2) The employment that the employer must provide is employment that is both suitable employment (as defined in Section 43A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury. (3) This section does not apply if: (a) it is not reasonably practicable to provide employment in accordance with this section; or (b) the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or (c) the employer terminated the worker’s employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury. Section 49 obliges an employer to provide suitable employment to an injured worker unless the employer can establish one of the three excuses set out in section 49(3). The issue for consideration is whether the Commission has power to require the employer to provide suitable duties in the event that Commission does not accept that one of the three excuses applies. The answer probably depends on whether or not the employee’s employment has been terminated.

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Can the WCC Order Suitable Duties? by Mary Karekos

Terminated Employees There have been a number of decisions in the Workers Compensation Commission dealing with jurisdictional issues and the power of the Commission to order reinstatement of employees whose employment has been terminated. In Sullivan v Illawarra Newspaper Holdings Pty Limited [2006] NSW WPD 135 (3 July 2006), Acting Deputy President Bill Roche stated: “… my prima face view is that the Commission does not have jurisdiction to order the reinstatement of an employee whose employment has been terminated by his employer. “ The Acting Deputy President contrasted the Commission’s limited powers with the express powers of the Industrial Commission to order the reinstatement of injured workers in certain speciﬁed circumstances. No equivalent power exists in either the 1987 Act or the 1998 Act. The views expressed by Acting Deputy President Roche were followed by the Registrar’s delegate in Red Sands Pty Limited and Lisa Turner (WCC 7069-07) on 24 September 2007. In that case, a worker whose employment had been terminated at the time the Application was lodged with the Commission sought suitable duties. The Registrar’s delegate stated that an employer’s obligation under Section 49 did not apply if any of the circumstances were present under Section 49(3). In that case, raising the application of Section 49(3)(c). Associate Justice Malpass in Fairfax Regional Printers Pty Limited v Workers Compensation Commission of NSW & Anor [2000] NSW SC 1087, decided some three weeks later, also referred to the obiter comments by Acting Deputy President Roche in Sullivan’s case. Associate Justice Malpass stated, “Whilst it may be correct to say that the Commission has no power of reinstatement, the issue at large is whether or not there is a duty pursuant to Section 49 to provide suitable employment to a worker whose employment has been terminated. As has already been said, Section 49 imposes a duty to provide suitable employment upon an employer who is liable to pay compensation to the worker under the Act in respect of his injury.” These cases indicate quite clearly that the Commission does not have the power to require the employer of a terminated employee to provide suitable duties even if the employee can establish that the employer has a legal obligation to provide suitable duties pursuant to section 49.

Employee Not Terminated The cases clearly indicate that the circumstances differ for an employee who is still employed. The decision of Arbitrator, Faye Robinson, on 12 January 2003 in Michael Denyer v B & D Roller Doors, dealt with the issue of an employee who was still employed. The issue in the proceedings was whether the Commission had power pursuant to Sections 49(1), 307(3) and 310 of the WIM Act to order the employer to provide suitable duties to the worker. In Denyer, the Arbitrator found that the Commission had the power to make an order that the employer provide suitable employment but on the facts in that case declined to do so. In Denyer, the Arbitrator held that an employer will only be ordered to provide suitable duties if those duties are readily available that is, they are already part of the company’s operations. In addition such duties must also be safe and, within the worker’s restrictions\capabilities. In that case, the employer was only a relatively small employer and the decision may have been different had the company been larger and in a better position to “accommodate” the injured worker.

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Can the WCC Order Suitable Duties? by Mary Karekos

In the matter of TAFE NSW (NSW Department of Education and Training) and Laurence Edward Shaw (WCC 16282-06), the recommendation made by the Registrar’s delegate whilst not directly on point also suggests that the operation of Section 49(3) of the Act was taken into account. This was speciﬁcally with concern to the “safety of workers and others in its workplace”. In that case the respondent argued that the obligations imposed by Section 8 of the Occupational Health and Safety Act 2000 indicated that it was not reasonably practicable to provide the worker with employment of the type sought. Emphasis was placed on Section 12 of the Occupational Health and Safety Act 2000 which imposes signiﬁcant penalties on a party that breaches Section 8. The respondent argued that it was not an appropriate matter for the delegate to direct the employer to provide the employee with suitable duties the type sought as, such a direction could potentially place the employer on risk of breaching its obligations to the worker, and others in the workplace under Section 8 of the Occupational Health and Safety Act 2000.

Summary There is no power in either of the 1987 Act or the 1998 Act to make an order for reinstatement of a worker. It follows by implication that the Registrar has no power to recommend reinstatement of an employee to suitable duties whose employment has been terminated by his\her employer. However, the Commission does have power to order an employer to provide suitable duties to an existing injured employee. Before refusal or disputing the provisions of suitable duties for employees who are still employed, an employer must be able to prove that suitable duties are not readily available and\or that the suitable duties are not safe or within the employees restrictions or capabilities.

For more information, please contact:

Mary Karekos Partner T: 02 8257 5731 mary.karekos@turkslegal.com.au

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