Employers must accommodate an employee's return to work within the first 52 weeks of an accepted WorkCover claim. But what happens after this time ends?
It's important to know that an injured employee still has rights in relation to your employment after the first year post injury.
Section 20 of the Equal Opportunity Act places a duty on employers to make reasonable adjustments for an employee with either a physical or psychiatric'disability'. These adjustments must be made, unless it is deemed that an employee could not adequately perform their duties after the adjustments are made.
Butterworth v Independence Australia Services  VCAT 2056
Ms Butterworth was employed by Independence Australia Services (IAS) as a customer service operator and was positioned in the call center division. In late 2011 Ms Butterworth suffered a neck and shoulder workplace injury and successfully lodged a WorkCover claim. For the next 12 months Ms Butterworth worked modified duties under a return to work plan. This included reduced hours answering telephone calls and more time completing administrative and other duties. After the 52-week obligation period ended, IAS determined Ms Butterworth could not perform the inherent requirements of her pre-injury duties and terminated her employment. Ms Butterworth alleged, amongst other things, that IAS had failed to make reasonable adjustments to cater for her disability.
The Tribunal found IAS had failed to consider and implement reasonable adjustments; and that it would have been reasonable for IAS to consider transferring Ms Butterworth out of the call center division into a more suitable area. However IAS failed to do this. It would also have been reasonable to give Ms Butterworth more frequent breaks and call on other customer service operators before her. Ms Butterworth was awarded $3,325.25 for economic loss and $10,000 for general damages (distress, hurt and humiliation).
Lessons for Employees
The Tribunal noted that the conclusion of the 52-week obligation period does not relieve the employer from complying with the Equal Opportunity Act. An employer must continue to make reasonable adjustments to accommodate a person with a disability/injury.
It is important that affected employees lodge a complaint about their employer's failure to make reasonable adjustments within 12 months of the failure.
In addition, while alternate legal avenues are available, many of these will impact WorkCover payments that have been received. A claim under the Equal Opportunity Act will not impact WorkCover payments.
If you have suffered a workplace injury and wish to learn more about your rights and entitlements, please contact Redlich's Work Injury Lawyers on (03) 9321 9988 for a no-obligation conversation.