When considering a proposed return-to-work plan from an employee recovering from an injury (work-related or otherwise), an employer may have concerns about the employee’s safety.
We know that discrimination laws apply to employers even where the employee’s injury is sustained outside of work (see related blog post). What we see from a recent VCAT decision is that disability discrimination risks may arise if an employer outright rejects a return-to-work plan and excludes an employee from work.
This case is also consistent with the trend amongst courts and tribunals to award substantial sums for breaches of anti-discrimination laws. In this case, the VCAT ordered the employer pay the employee the sum of $45,000 for pain and suffering and over $190,000 for lost income and entitlements for the two-year period the employer excluded him from work.
It’s a timely reminder for employers of the discrimination risks when engaging with injured employees in their return to work.
Facts
The employee teacher was absent work from 2018 following a spinal stroke. The employee’s GP subsequently signed off on a return-to-work plan for a gradual return, to commence in January 2020.
The employer had initially signed the return-to-work plan but then close to when it was due to commence, the employer notified the employee that it did not support the return-to-work plan. The employer expressed concerns for the employee’s health, saying there was no proof he was fit to return to work and that the proposed adjustments were not reasonable. The employer relied on an older report describing the employee as “totally unfit to work”.
Seven months later, the employer requested the employee undergo an independent medical examination.
The employee was excluded from returning to work for approximately two years, notwithstanding the GP certifying the employee as fit to work in accordance with the proposed plan in February, April and July 2020.
Decision
The VCAT agreed the exclusion of the employee from work amounted to disability discrimination. The employer’s insistence on an independent medical report was found to be part of the employer’s unfavourable treatment of the applicant based on his disability, because it was requested so late in the piece, and given the ongoing advice from the employee’s treating doctor that he was fit to participate in a gradual return to work.
VCAT highlighted that the employer provided no evidence or submission about why it considered the GP reports insufficient and was critical of the employer not enquiring further regarding the proposed reasonable adjustments. It was found that if the employer was unable to accommodate any of them, it should have identified what was unable to be accommodated and offered alternatives (or have proof that there were no alternatives).
How Justitia can help
If you need advice on reasonable adjustments and your obligations towards injured employees, Justitia can help. Please contact info@justitia.com.au for further information.