Failure to support a worker's return to work: Is it constructive dismissal?

The Employment Relations Authority (ERA) recently dealt with a case where a worker claimed his employer failed to properly support his return to work following two workplace accidents, leading to what he argued was constructive dismissal.

The worker raised multiple personal grievances against his employer, including claims about workplace safety, rehabilitation support, and flexible working arrangements.

The case brought into focus important questions about employer obligations during injury recovery and the boundaries of reasonable workplace accommodations.

Worker suffers accidents at work

The worker started as a casual employee at a vineyard in September 2003 and soon became a permanent full-time vineyard labourer. His duties primarily involved vineyard work from Monday to Friday, 8:30 am to 5:00 pm, subject to weather conditions and specific tasks.

He suffered two workplace accidents - one in October 2018 involving a tractor-mounted mower that resulted in a concussion, and another in December 2018 in a tunnel house that caused knee injury. After the first accident, he was certified unfit for work until November 2018.

The vineyard manager wrote shortly after the first incident: "[The worker] should not have been underneath mower," documenting their immediate assessment of the situation.

Medical certificates and workplace restrictions

From February 2019, the worker was certified fit for limited hours with physical restrictions. An occupational medicine specialist assessed him in March 2019, concluding that his role was "unsustainable currently, prospects guarded."

The worker sought flexible working arrangements, but the employer maintained they couldn't provide work that complied with the medical restrictions.

The vineyard manager wrote: "We did not have flexible, part-time work available. The work currently available was fulltime and involved twisting and bending, both actions prohibited by the medical certificates."

Worker’s return-to-work options

The employer attempted to arrange meetings with the worker and ACC representatives to discuss return-to-work options.

When these attempts were unsuccessful, the employer's representative wrote: "[The employer] would seek to schedule the deferred meeting with [the worker], the ACC case manager and the physiotherapist."

The worker declined these meetings, stating there could be "no possible role for a 3-way meeting with ACC" because of his personal grievance about rehabilitation issues.

After nearly two years of ongoing disputes about work capacity and rehabilitation, the worker resigned in November 2020. The ERA examined whether this amounted to constructive dismissal.

The Authority found that good faith obligations weren't met by the worker, stating: "[The worker] had an obligation to be active and constructive in maintaining a productive employment relationship and be responsive and communicative. He was not."

In addressing the multiple personal grievances, the ERA noted: "[The worker's] employment was affected by his failure to engage and co-operate, not by the absence of a direct response to his information request."

The Authority concluded: "[The worker] resigned as he had or was about to commence work elsewhere... [The worker] has no other personal grievance against [the employer]. [The worker's] claims for remedies are dismissed."

This case highlighted the importance of both parties actively participating in return-to-work processes and maintaining open communication during workplace injury rehabilitation.