Ready to return to work but my employer won’t have me back

Injured workers strive to get back to work as soon as they can. However, they often face hurdles from employers who see them as a risk. TGB senior associate Dimitra Bouras and lawyer Alexandra Harris explain the return-to-work process and your options if your employer is reluctant to take you back.

What can a worker do when they are ready, willing and able to go back to work, but their employer is reluctant to provide them with suitable duties?

Section 18 of the Return to Work Act, referred to as “Employer’s Duty to Provide Work”, is a provision that allows an injured worker to make an application to their pre-injury employer (the employer where the injury arose) to provide suitable work for them.

The pre-injury employer must provide suitable employment for the worker. However, section 18 (2), below, outlines where the employer is exempt from doing so:

1. It is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies on the employer); or
2. The worker left the employment of that employer before the commencement of the incapacity for work; or
3. The worker terminated the employment after the commencement of the incapacity for work; or
4. New or other employment options have been agreed between the worker, the employer and the Corporation under section 25(10); or
5. The worker has otherwise returned to work with the pre-injury employer or another employer.

To date, there has only been one decision handed down by the South Australian Employment Tribunal dealing with this provision of the Act: Walmsley v Crown Equipment Pty Ltd [2016] SAET 4.

The decision of Walmsley shows how the provision has been interpreted as well as the steps that must be followed to submit an application under section 18 of the Act.

Injured workers must first consider their level of incapacity and the level at which they can return to work.  For example, make it clear whether they can return to work on a full-time basis, part time basis, modified duties etc.

Section 18(2) of the provision sets out the scenarios in which an employer will not be liable to provide work to the injured worker.

At this point, the main hurdle an injured worker will need to satisfy is section 18(2)(a) which sets out that employment will not need to be provided if “it is not reasonably practicable to provide employment”.

The employer may successfully argue it is not possible to provide suitable duties to the injured worker, and factors such as the worker’s skills, size of the employer/business, type of work carried out will all be taken into consideration.

What is “reasonably practicable” is ultimately a question of fact and degree.

The decision of Walmsley dealt with a worker who had injured his back at work. He worked as a field service technician maintaining equipment such as forklifts. After sustaining his initial back injury in 2012, he sustained further injury in 2014 and was provided with modified duties until his employment was terminated in 2015.

The worker served his employer with notice pursuant to section 18(3) of the Act that he was “ready, willing and able” to return to work and his employer declined to provide him with employment. Their reasoning was based on the fact the worker had recently been advised by a doctor that he would most likely have permanent restrictions on his capacity for work.

Prior to being terminated, the worker had been performing a variety of jobs which suited his restrictions that would ordinarily have been allocated to other employees. The duties significantly differed to what he was originally employed to perform, however catered to his ongoing restrictions.

The employer had been somewhat narrow minded in their approach and rather than considering the worker’s range of skills, and whether they could perform duties outside the scope of what he was originally employed for, they ceased providing him with suitable employment.

The South Australian Employment Tribunal held that the employer had suitable duties that could be offered to the worker, ordered that these be provided. It is important to be mindful, however, that all cases turn on their facts.

The formal process an injured worker must satisfy is outlined in section 18 (3) and (4) of the Act as follows:

The worker must first give written notice to the employer that they are “ready, willing and able” to return to work, and provide information about the type of employment they are capable of performing.

If the employer fails to provide suitable duties within one month after the worker has written to them, the worker can make a formal application with the Tribunal within one month of the employer failing to provide work (unless an extension of time is granted).

The first step is to provide written notice of being ready willing and able and explain duties you are capable of performing.

If no response is received within 4 weeks, it would be best to seek legal advice, as if you want to lodge an Application pursuant to s 18 of the Act (i.e., notifying the Tribunal of your employer’s failure to respond), this should be done within 4 weeks of not receiving a response (unless you are granted an extension of time).

Section 18(5) of the Act provides that if the Tribunal is satisfied that it is not unreasonable for the employer to provide employment, the Tribunal must order the employer to provide the worker employment specified by the Tribunal unless the Tribunal determines otherwise.

If you are having trouble returning to work contact your nearest TGB office or call us on (08) 8212 1077 to arrange a free initial interview .