No pain, no gain – Tribunal rules that incapacity is a requirement for a Section 18 application
The South Australian Employment Tribunal has handed down another favourable decision for employers relating to Section 18 of the Return to Work Act 2014 (SA) – the section that allows injured workers to apply to the Tribunal for an order requiring the pre-injury employer to provide “suitable employment”.
In Coleman-Sleep v Return to Work SA  SAET 144, Judge Rossi dismissed a Section 18 application by a worker, Ms Coleman-Sleep, as she had no ongoing incapacity for work. Judge Rossi followed the earlier decision of Judge Crawley in Roberts v Department for Education  SAET 56.
Significant legal points arising from the judgment include:
- Section 18 requires workers to have an incapacity for work by reason of the injury – both at the time of application and at the time of the proposed order of the Tribunal.
- In considering whether employment sought is “suitable”, the Tribunal will consider things such as the likelihood of a successful return to work, the risk of re-injury and the period of time that has passed since a worker last attended and performed work.
- Ordinarily, it is not enough for an employer to assert that employment is not reasonably practicable merely because there are no current vacancies – particularly in the context of large businesses. However, the effect on other staff is a relevant consideration, including in terms of casual hours, effect on duties, or support provided to staff.
- Even if the employment nominated by the worker is suitable and it is reasonably practicable for the employer to provide the employment, the Tribunal has a discretion to decline to make the order. This discretion is unfettered, but relevant considerations include:
- The time since the worker has last undertaken the employment, and whether there can still be a continuing employment relationship with associated trust and confidence;
- Whether there is, or was, a more appropriate forum for the worker to assert their workplace rights (for example constructive dismissal proceedings).
- As a general statement, the longer the period of time between the last day worked and the section 18 Application, especially in circumstances of unresolved conflict between the worker and the employer, then the greater the concern that a constructive working relationship will not be able to be re-established – and more likely is the conclusion that it would be unreasonable to order the employer to provide employment.
- The entitlement of a worker to recover costs relating to approved recovery/return to work services is subject to the time limitation set out in s33(20) – being 12 months after the entitlement to receive weekly payments ends or, if there is no incapacity for work, 12 months from the date of injury.
The decision in Coleman-Sleep provides a helpful precedent in relation to the assessment of Section 18 applications and demonstrates the importance of having up to date medical evidence about a worker’s capacity for work.
This evidence of capacity is important because, once an injured worker ceases to be incapacitated for work, their rights and obligations in respect of any employment fall to be determined under the laws governing employment generally – not under the Return to Work Act 2014.