Your right to return to work

Monday 23 October 2017

If you have suffered an injury and are subsequently certified fit to return to work – either at full or partial capacity – you have a legal right to return to work.

Your employer is obliged, as far as is reasonably practicable, to return you to work and must make reasonable accommodations for it to occur. This right is irrespective of whether you have an accepted WorkCover claim or whether you have suffered a physical or a mental injury.

The benefits of returning to work are well known. It is the primary focus of both the Victorian WorkCover and the national Comcare schemes.

Unfortunately, it is not uncommon to see employers making it hard for employees to return to work.

In a recent VCAT decision, it was held that an employer’s refusal to accommodate a timely return to work was direct discrimination in breach of the Equal Opportunity Act 2010 (EOA). This law covers all Victorians, and requires, that an employer make reasonable adjustments to allow an injured employee to return to work.

In Harrison v The Department of Education and Training, one of Ms Harrison’s claims was that she was not returned to work in accordance with her medical certificate and this was discriminatory. Ms Harrison, a teacher who suffered a medical condition which caused her to be unfit for full time work, was offered a return to work as a casual relief teacher. Following acceptance of this offer, she was assigned to the library – which she again accepted. She then took a period of long service leave.

In October 2012, upon her return from leave, Ms Harrison made a request to return to work in the 2013 teaching year. The employer requested a certificate clearing her fit for work, which she provided by Ms Harrison on 15 January 2013. The employer refused to accept the certificate and made an independent medical appointment to assess her fitness for work. On 20 March 2013 a report was written by the independent doctor certifying her fit for work for 2 days with no restrictions. For reasons unknown to the applicant, the employer did not make an offer of employment until 23 April 2013 and it did not accommodate the return to work until 15 May 2013. Ms Harrison was not paid in the period 28 January 2013 through to 14 May 2013.

The tribunal held that the refusal to accommodate Ms Harrison’s return to work on 27 January 2013 was unreasonable and amounted to direct discrimination. This was a breach of s20 of the EOA. The applicant was awarded lost wages for the period 28 January 2013 through to 14 May 2013. She was further awarded damages for her distress, humiliation and hurt feelings in the amount of $4000.

The case confirms that where there is medical evidence certifying an injured worker is fit to return to work, an employer’s delay in arranging for the return may be discriminatory and compensation may be payable.

If you have suffered a workplace injury and wish to learn more about your rights and entitlements, please contact Adviceline Injury Lawyers on (03) 9321 9988 for a no-obligation conversation.

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