The Return to Work scheme is designed to support workers who suffer injuries at work. In our recent Insights we have discussed the general entitlements such as income maintenance, medical and rehabilitation expenses and lump sums payments under Sections 58 and 56 of the Return to Work Act 2014. However, the primary object of the Act is to return you to work. This is not always possible. Here, we make sense of Section 18 of the Act.<br>
In many cases, as an injured worker, you will be off work for a period of time where the focus will be on obtaining necessary medical treatment and rehabilitation. Once certified fit to return to work by your treating practitioner, the expectation is that the employer will provide you with suitable duties. Unfortunately, this is not always the case.
Obligation to provide suitable employment
Section 18 of the Act provides that if you have been incapacitated for work and are able to return to work (whether full-time or part-time), the pre-injury employer must provide you with suitable employment. This being employment for which you are fit, and the role being, as far as reasonably practicable, the same as or equivalent to the pre-injury role.
Exceptions to the rule
There are circumstances where an employer is exempt from providing you with suitable duties as outlined in Section 18(2) of the Act. The employer may successfully argue that:
- It is not reasonably practicable to provide employment;
- You had already ended employment before the incapacity arose;
- You terminated employment after the incapacity arose;
- New or other employment options had been agreed between you, the employer and RTWSA; or
- You had already returned to work with another employer.
Aside from the above circumstances as well as the employers general right to terminate you on the grounds of serious and wilful misconduct, there is scope for you to push the employer to provide suitable employment.
The first step is for you to notify the employer in writing that you are ready, willing and able to return to work with the employer. It will be necessary to provide information about the type of employment that you are capable of performing. This will obviously need to be suitable based on your physical capacity and skill level.
If within one month of your written notice the employer fails to provide you with suitable employment, you may apply to the Tribunal for an order that the employer provide you with employment as specified by the Tribunal. This application needs to be filed within one month of the employer failing to provide suitable work unless an extension of time is granted.
What is considered by the Tribunal?
There have been a few decisions handed down by the South Australian Employment Tribunal which offer some guidance as to how the Tribunal handles Section 18 applications.
Firstly, it will be necessary to consider your level of incapacity and the level at which you can return to work. Your underlying experience, skills, qualifications and aptitude will all be considered by the Tribunal.
The onus is on the employer to establish that it is not reasonably practicable to provide the proposed employment. The term “reasonably practicable” will ultimately turn on the specific facts of the matter.
The Tribunal will give regard to factors such as the employer’s size, history and operational requirements, the relationship between you and the employer, health and safety issues, the utility of the proposed suitable employment and the cost to the employer.
It is important to note that if you do pursue a Section 18 application, you are entitled to an award for your reasonable legal costs of the proceedings. Given that such matters are complicated and largely rest on the circumstances of case, it is highly recommended that you seek legal advice before proceeding with a Section 18 application.