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Special COVID-19 ruling to reinstate injured worker

Allowing the injured employee access to JobKeeper payments.
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Special COVID-19 ruling to reinstate injured worker

Special COVID-19 ruling to reinstate injured worker

22 April 2020

A 62-year old injured production operator in Western Australia will be reinstated by his employer, pending the outcome of his disability discrimination claim, in order to maintain employment and access JobKeeper payments during the coronavirus epidemic.

The company, BOC, claimed they were not satisfied the worker could perform the duties without injuring himself or others. However, Federal Court Justice Neil McKerracher said that while BOC had disagreed with all reasonable accommodations proposed by the worker, it was clear other tasks were available for him to do.

The worker was dismissed on 17 March 2020 due to medical evidence showing he was unable to carry out the inherent requirements of his employment, which included loading, processing and filling gas cylinders that weighed up to 5kg.

The worker had been on leave since June 2018, when he injured his right shoulder in a car accident. He worked normally through to January 2019 however he began experiencing significant pain leaving him unfit to work and on leave without pay from April 2019. After the worker had rotator cuff surgery in November 2019, his surgeon advised he would be fully recovered and fit for work after another month of rehabilitation.

BOC requested the worker complete a fitness for work assessment, which presented a 20kg lifting limit as well as persistent pain and limited movement in his neck.

The worker provided evidence from his orthopaedic specialist, who said he would be "more than happy" for the worker to return to his pre-injury role yet BOC terminated his employment regardless. BOC held its position that there were no suitable work adjustments available and the worker had shoulder and neck issues as well as a lack of specific medical evidence.

The worker lodged a complaint with the AHRC alleging BOC was in breach of the Commonwealth Disability Discrimination Act 1992 and Age Discrimination Act 2004 and unlawfully discriminated against him because of his apparent disability.

BOC’s stated it could discriminate against workers who were unable to carry out the inherent requirements of their work as specified under section 21A of the Disability Discrimination Act.


In Court

There was debate around the appropriate remedy. BOC argued that monetary damages would be an adequate remedy if the worker was found to be unlawfully discriminated against and that interim reinstatement was unnecessary.  

The Justice stated that the courts to date have favoured monetary remedies and been reluctant to order parties to an employment relationship. However, in this circumstance, a remedy more than money had to be considered due to the worker’s age, skill level and current economic and employment situation given the coronavirus epidemic.

To be eligible for the Federal JobKeeper financial benefit, a worker had to be employed by an employer at a certain date. This became a key driver in making the reinstatement order, from 16 March to date of these orders, once the disability claim has been determined.

The Justice found that BOC’s conclusions reached on “restricted capacity are unexplained and appear to be a sharp leap from the conclusions as to his actual physical condition” given the issues in his right shoulder were not an issue as he is left handed. The report BOC relied on to dismiss the worker included testing to lift 20kg weights which BOC does not require in the role, the outcome did not "demonstrate complete unfitness," it showed some restrictions.

In addition, BOC did not appear to have considered any reasonable adjustments, like allowing the worker to avoid "the more taxing areas of work, as other employees in his position do", or work “part time”.

The bottom line: ensure any medical tests to assess the inherent requirements of the role relate to the specific requirements of the role to have credibility in the assessment outcomes as well as assessing all reasonable adjustments before moving to termination of employment.
 

The Judgement

Daccache v BOC Limited [2020] FCA 485 (16 April 2020)

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