In Roberts v Department for Education [2021] SAET 225 (‘Roberts’) the Full Bench considered two important issues regarding the operation of section 18 of the Return to Work Act 2014 (‘the Act’) which is the section of the Act that imposes an obligation on employers to provide suitable employment to injured workers.
Applying for the Tribunal’s Intervention
The first important issue was whether a worker who has fully recovered from their work injury can apply to the Tribunal requesting that it intervene to order the employer to provide suitable employment.
On several occasions, the Tribunal has previously found that once a worker has fully recovered from their work injury the worker cannot apply to the Tribunal for an order under section 18 of the Act. The Full Bench in Roberts confirmed these decisions and found that if the worker did not have an ongoing incapacity at the time of the trial then the Tribunal would not intervene. It is the first Full Bench decision confirming this issue.
This will be important to employers in two key situations:
where the worker has been absent from work for a long period of time and then suddenly provides a medical certificate claiming they have fully recovered; and
where the worker has a historic work injury but tries to rely on section 18 of the Act long after they have recovered (the possibility that obligations last indefinitely once a worker has experienced a work injury has been a concern needing clarity).
The decision from the Full Bench highlights that the purpose of section 18 is to assist workers with some capacity to return to work in some shape and form.
The Tribunal’s Discretion
The second important issue is how the Tribunal will exercise its discretion when deciding whether to make an order that an employer provides suitable employment to an injured worker.
The Full Bench agreed with earlier decisions that held potential difficulties in the parties re-establishing a productive employment relationship and other practical difficulties should be taken into account. The Full Bench said that the exercise of such discretion requires the Tribunal to “stand back and reflect upon how the proposed return to work will pan out”. This also includes consideration of issues from the perspective of the worker’s colleagues and employer.
In many respects, the Tribunal will ask itself if the employment relationship can work and whether it is feasible to bring the worker and employer (and other employees) together moving forward. Issues such as prior unresolved workplace conflict involving the worker could be an example of why the Tribunal would not order the worker and employer back together.
Decision Highlights
In making this decision the Full Bench highlighted that the workers compensation scheme needs to consider more than just the interests of the injured worker. There is a need to balance the economic impacts of returning a worker at less than full productivity, as well as the adverse impacts on other colleagues who might have duties taken from them or opportunities denied in favour of the injured worker.
This Full Bench decision confirms that section 18 is not an indefinite obligation that arises because of a work injury, and confirms that factors affecting the likely success of the employment relationship (from the perspective of the worker, the employer and the other employees at the workplace) are relevant in the context of a worker with a psychiatric injury seeking to return to work with the employer.
Workers compensation claims involving section 18 and psychiatric injuries can be complex. Should you require advice about workers compensation matters or employment law more generally, please feel free to contact us.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.