A host of injured public servants face uncertain futures following a public sector and legislative shake-up. TGB Senior Associate Chrissy Psevdos examines their legal rights.
This morning’s edition of The Advertiser (4/4/2017) reported 138 public servants could be out of a job beyond 1 July 2017 when all new workers compensation claims by public servants will instead be handled by Return to Work SA, and not their agency’s injury management provider. Opposition Treasury spokesman Rob Lucas claimed Return to Work SA would not employ any of the affected staff.
Such uncertainty for the future is distressing for these employees and their families and it is important they know their legal rights. But what about the injured public servants that make up the more than 500 existing claims that require ongoing management during, and after, the transition process?
All injured public servants should be aware that arguably the Government, as their employer, has an obligation to provide suitable work duties despite the fact many may be in their last few months of receiving income support payments on their claims. All injured workers (except those who are seriously injured) who transitioned from the Workers Rehabilitation and Compensation Act 1986 to the Return to Work Act 2014 on 1 July 2015, were entitled to 104 weeks of weekly income maintenance payments. As the 30 June 2017 deadline approaches these workers will now be receiving notification that their payments of income support will cease and are likely feeling uncertainty and distress over their futures. To help remedy this many will be considering a return to work.
It is possible that employers (including the Government) will assert that their obligation to provide their injured workers with suitable duties stops once the income support payments come to an end. Our reading of the legislation is such that employers have an ongoing obligation in accordance with section 18 of the Return to Work Act 2014 to provide suitable employment for the worker despite payments coming to an end.
As discussed in our December blog, 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:
- It is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies on the employer); or
- The worker left the employment of that employer before the commencement of the incapacity for work; or
- The worker terminated the employment after the commencement of the incapacity for work; or
- New or other employment options have been agreed between the worker, the employer and the Corporation under section 25(10); or
- The worker has otherwise returned to work with the pre-injury employer or another employer.
Depending on the individual worker’s level of capacity (or incapacity) for work, whether or not an employer can satisfy one or more of the above five exemptions will need to be assessed on a case-by-case basis and it is recommended that injured workers seek legal advice well before 1 July 2017. The reason for that is that to return to work written notice must be given to an employer in accordance with section 18(3) of the Act. If an employer fails to provide suitable duties within one month, workers should seek legal advice so that an application can be made to the SA Employment Tribunal within time.
Section 18(5) of the Act provides that if the Tribunal is satisfied it is not unreasonable for the employer to provide employment, the Tribunal must order the employer to provide duties for the worker.
Returning to work from an injury requires understanding and co-operation between both sides. However, this is not always possible, nor are the barriers to achieving this clear. If you are a public servant intending to return to work from an injury it is wise to get legal advice at the earliest opportunity. Tindall Gask Bentley Lawyers are experts in such matters. Book an appointment at your nearest office today, or register your details here and we’ll be in touch soon.