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Significant decision on employer’s obligation to provide suitable employment to injured workers

The South Australian Employment Tribunal has handed down a decision which brings greater clarity to employers about their obligation to provide suitable employment to an injured worker.

In Coleman-Sleep v Return to Work SA [2021] SAET 144 (‘Coleman-Sleep’), the Tribunal declined to make an order for suitable employment under section 18 of the Return to Work Act 2014 (‘the Act’).

In doing so DPJ Rossi held:

  1. Only workers that have an ongoing incapacity for work are eligible to seek an order under section 18 of the Act that they be provided suitable employment with the employer.
  2. If a worker has no ongoing incapacity as a result of their work injury then they should seek remedies through other legal avenues (such as contract law and the Fair Work Act 2009) as opposed to the Act. The existence of those other legal avenues can be a basis for resisting an order under the Act.
  3. The state of the relationship between the worker and employer (including between the worker and others in the workplace or clients) can be a basis for not providing suitable employment. The Tribunal can form a view about whether a constructive relationship can exist or whether there has been an irretrievable breakdown in the working relationship.
  4. Unresolved conflict between a worker and others in the workplace (staff and/or clients) and unsuccessful attempts to mediate those conflicts are a relevant consideration.
  5. The risk of a recurrence of the work injury may be a basis for not providing suitable duties.
  6. The time that has passed since the worker last worked for the employer is a relevant consideration. In Coleman-Sleep there was a 5-year period between last day of work and judgment.
  7. The lack of any vacant positions with the employer is not a reason by itself to not provide suitable employment particularly when dealing with larger organisations.
  8. A Return to Work Plan with a goal of finding a new employer can suspend any obligation that might exist under section 18 of the Act but may not necessarily bring a permanent discharge of any future obligations in the absence of a clear agreement between the parties.

The judgment is one of the very few that has considered section 18 in the context of a psychiatric work injury and so provides useful guidance to employers on the scope of this obligation.

The decision highlights:

  • The importance of attempts at mediation and conflict resolution in the context of a worker with a psychiatric injury seeking a return to work with the employer.
  • Section 18 of the Act is perhaps narrower than may appear on its face. Its purpose seems more aligned to ensuring injured workers who have gained some capacity are supported in their endeavours to return to meaningful employment within their limitations, rather than an indefinite obligation that arises because of a work injury.
  • The medical evidence is very important for employers to consider in terms of whether there is any ongoing incapacity, the risks of a significant recurrence of the injury, and also whether medical reports are based on a proper understanding of the matter.

The judgment can be accessed at this link: Coleman-Sleep v Return to Work SA [2021] SAET 144.

Cowell Clarke is pleased to have represented the employer in defending these section 18 proceedings. If you have any questions about employer’s obligations in relation to injured workers (including under section 18 of the Return to Work Act 2014) 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.

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