Thinking | 21 March 2016

Employers: your return to work obligations don’t end after 52 weeks

Butterworth v Independence Australia Services (Human Rights) [2015] VCAT 2056 (22 December 2015).

Do you think your return-to-work obligations finish after the 52 week employment obligation period set out in the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) ends?

Think again.

A recent decision of the Victorian Civil and Administrative Tribunal (the Tribunal) has highlighted that after the 52-week period in the WIRC Act has lapsed, section 20 of the Equal Opportunity Act 2010 (Vic) (EO Act) applies. Section 20 of the EO Act requires an employer to make reasonable adjustments for any person with an impairment who requires those adjustments in order to perform the genuine and reasonable requirements of the employment.

If the employee still cannot adequately perform the genuine and reasonable requirements of the employment even after those adjustments are made, then employment may be terminated.

What reasonable adjustments are employers required to make?

The employee’s duties must be adjusted in such a way that allows the employee to adequately perform the genuine and reasonable requirements of their employment.

The recent Tribunal decision makes it clear that defining the genuine and reasonable requirements of the employment is not a straight-forward task. It requires consideration of the employment as a whole, and especially the employee’s contract of employment (including their position description), as well as the organisational and operational requirements of the employment. Importantly, this requires a broader consideration by the employer than whether the employee can perform the inherent requirements of their pre-injury role.

For example, it may be reasonable for the employer to redeploy the employee to another part of the business, even if this requires moving other staff around.

You can read more about reasonable adjustments in our previous article here.

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Karl Rozenbergs

Employment lawyer Karl Rozenbergs advises clients in adverse action claims, on negotiating enterprise agreements and much more.

Stephanie Rocca

Insurance lawyer Stephanie advises WorkSafe Victoria and its agents in strategies to defend and resolve workers' compensation claims.

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