Commission found legislation applies only to workers with an 'ongoing incapacity'
The South Australian Employment Tribunal has rejected a worker’s attempt to show that her employer should have provided her with alternative “suitable employment” following her recovery from an injury. The worker submitted that the legislation in question should have been applied “liberally and beneficially to workers”. However, given she had already recovered from her injury, the Full Bench declined the worker’s appeal.
The case concerned a worker employed by a government department. In 2014, the worker developed a psychological injury, which led her to become incapacitated for work. During the time she was unable to work, the employee’s role within the Department ended.
In 2018, after making a full recovery from her injury, the worker applied to the Department to provide her with alternative “suitable employment” under South Australia’s Return To Work Act.
The Return To Work Act stipulates that an employer must provide suitable employment to an injured worker. Suitable employment may take the form of reduced or alternative hours, limited duties, or generally modified work.
The Department rejected the worker’s application on the basis that she was no longer incapacitated for work.
The Full Bench of the Employment Tribunal acknowledged that the Return To Work Act could adversely impact other workers, who may be required to take on extra work to accommodate the injured employee. With this, it noted the importance of striking “a balance between the interests of employers and workers”.
The worker submitted the legislation should not be limited to those who are currently unable to work but should also extend to those who were previously unable to work. The Department rejected this submission, reiterating that given the worker was no longer handicapped, her application should be dismissed.
The Full Bench sided with the Department, finding the legislation only included those workers with an “ongoing incapacity” for work.
The Full Bench dismissed the worker’s appeal.
