Reinstatement applications by dismissed injured employees
Since the early 1990’s the NSW Industrial Relations Commission has had jurisdiction to order the reinstatement of injured employees. Until recently very few employees have applied to the Industrial Relations Commission for reinstatement.
The legislation
The legislation is now set out in the Workers Compensation Act. Section 241 provides that if an injured worker is dismissed because he or she is not fit for employment, the worker may apply to the employer for reinstatement.
Section 242 provides that if an employer does not reinstate the worker immediately, the worker may apply to the Industrial Relations Commission for a reinstatement order.
Section 242(3) provides that the Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application was made more than 2 years after the injured worker was dismissed.
Although this legislation was introduced in the early 1990’s, there have been very few applications. Many of the early cases concerned nurses. The leading case was the matter of Cansino -v- South Western Sydney Area Health Service. In that case the full bench of the IRC held that an employer was not required to fashion a new job for an injured employee.
Diaz -v- South Western Area Health Service
In this case Mr Diaz was the kitchen hand. He sustained a work related injury to his shoulder. His employment was terminated on the grounds that his employer had no work for him in accordance with his light duties request.
In May 2008 the Industrial Relations Commission (IRC) considered his application for reinstatement. Commissioner Connor accepted that there was no appropriate duties as a kitchen hand within his restrictions. However the Commissioner considered that the hospital was a large employer and that Mr Diaz could be usefully re-employed in a clerical position.
Mr Diaz had given evidence that he had computer and administrative skills. The Commissioner ordered his reinstatement.
Hofman -v Penford Australia Ltd
Mr Hofman had been employed for many years as a plant operator. He sustained a work related injury in January 2005. His ongoing restrictions were that he was unable to lift objects more than 10kgs in weight and lift objects above 5kgs above shoulder level. He returned to fulltime work subject to those restrictions. He continued in his modified position but his employer dismissed him in July 2007.
He sought reinstatement in a lighter position. His employer argued that due to economic pressures it could not support the role of a plant operator with his restrictions. They also argued that there would be significant costs in retraining. The Commissioner held:
“It is well established that in circumstances where an employee is unable to fulfil all of the inherent requirements of the job, it remains necessary for the employer to take reasonable steps to accommodate any limitations and only after a proper examination of potential alternatives should there be any move towards dismissal”.
The Commissioner found that although the employer had restrictions in respect of lifting, there was evidence that he could do a variety of activities and that the cost of retraining would not be unreasonable. Reinstatement was ordered.
Section 248 of the Workers Compensation Act
It is also worth pointing out that Section 248 makes it a criminal offence to dismiss an injured employee within 6 months of the date that they first become incapacitated, if they are dismissed on the basis of incapacity.
Conclusion
There are a number of cases progressing through the IRC. There at least 2 in the Wollongong registry. Both relate to claims against large employers. Large employers will be more exposed for these claims.
Injured workers who regain fitness would be well advised to look at their potential remedies under these sections of the Workers Compensation Act.
Employers who are faced with an application for reinstatement should get legal advice. We are likely to see many more of these applications in the next few years.
