How many employees does your company have on workers compensation? Of those employees, are you sure any rehabilitation program put in place has been followed?
In Dharam Vic Gupta v CS Energy Ltd, an employee commenced proceedings in the AIRC after he was terminated for not being able to perform operational requirements of his position. The employee was certified totally unfit for work for a period of two years before the employer chose to terminate employment.
The employee argued the employer failed to follow a rehab program, which included regular contact with the treating doctor and rehab service provider regarding suitable duties for the employee. It was ultimately held by the AIRC that the failure to follow the program by the Employer did not mean there was not a valid reason for the termination of Mr Dharam’s employment. In this case the breach did not make much of a difference to the workers capacity to perform his duties.
Had the injured worker been capable of returning to his pre-injury duties if an appropriate rehabilitation program was in place – the AIRC decision would have been very different. The failure to provide an appropriate Return To Work program can be a breach of the Accident Compensation Act and a bad business decision. Why bad business? Because it sends the wrong message. A message that others will follow.
What should happen is -
• Proper and accurate development of RTW program
• Appropriate functional assessments – so where incapacity has exceeded 52 weeks (Vic) or 26 weeks (NSW), the termination process can begin.
Only, when monitoring, planning and strategy is adopted universally across the business can problems like this case be avoided, the injured employee healed or moved on and the business save considerable loss.
The case highlights the importance of following return to work programs for injured employees. Where a tough decision is required relating to the employment of injured employees, employers are required to follow any rehab program in place. Objective assessments of the workers capacity to perform his or her duties are often the best guide for assessing any future ability to return to work. Objective assessments offers transparency to any affected employee, and will often add to an employers protection should any proceedings ensue.