FAQ 2
__________________________________________
___________________________________________________________________________________
My employing Agency won't provide a Return to Work (RTW) program.
I have used up all my paid leave.
What can I do?
____________________________________________________________________________________
Notes Rehabilitation is a political issue In response to the Review of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) the Minister for Employment and Workplace Relations, Bill Shorten, recently stated in a Press Release on 2 May 2013: The Mister clearly recognises the benefits of early engagement and rehabilitation, saying: "The Government's priority is to improve Comcare's early engagement of injured workers and the effective provision of rehabilitation by employers. These two factors are critical to helping people get back to work safety and in good time." The Minister also said: "When a person is injured at work it is important that the focus is on early intervention and rehabilitation; to get them back into work as soon as possible. Early intervention brings with it a range of benefits for workers and employers. It helps people who are injured get back to the things they value most in life sooner, including their jobs. For employers, it helps to lower the costs associated with having people off work and the productivity loss that comes with this." Although at the time the Minister was referring only to employees who are injured at work, the same principles apply to all injured workers. |
It appears that some Commonwealth Agencies may be unlawfully suspending employees by forcing them onto miscellaneous leave without pay for long periods.
The effect on the employee is devastating. Imagine that your fortnightly pay packet ceased to arrive. How do you pay you mortgage or your rent? How do you buy food? What do you say to your children? If you are an APS employee on unpaid leave, you cannot engage in other work without the permission of the Agency. You cannot access unemployment benefits, because you are still technically employed. If the situation continues for long enough, you may feel that your only option is to resign. Perhaps that is exactly what your employing Agency is waiting for . . . . . ? If you have been absent from work due to a period of illness or an injury, and your employing Agency refuses to provide a return to work plan; arguably the Agency has unlawfully suspended you. If you are unwillingly using up your leave entitlements, or have unwillingly already used up all your paid leave entitlements, ask yourself why you are on leave. Is it because you genuinely wish to be on leave, or is it because you have effectively been suspended from duty? If you are excluded from the workplace at a time when you are willing and able to attend and perform duties (whether on a part-time or full-time basis it is difficult to avoid the conclusion that your employment has been suspended. Is this legal? Well, in a word, NO! The only power of suspension in the Commonwealth Public Service legislation is Regulation 3.10(3). That regulation authorises suspension only where the Agency Head reasonably believes that: (a) the employee may have breached the Code of Conduct; AND (b) the employee’s suspension is in the public, or the Agency’s, interest. An employee who is suspended for suspected misconduct is usually paid their full pay during the period of suspension (“gardening leave”). If the employee has been suspended without pay, the suspension cannot be for more than 30 days unless exceptional circumstances apply. In that case, the Agency Head must review the suspension at reasonable intervals. The Agency Head must (of course) have due regard to the requirements of procedural fairness. An Agency is required to carry out and determine a misconduct investigation with as much expedition as a proper consideration of the matter allows. However, where there is a requirement to implement a return to work program, in some cases expedition is apparently not considered to be necessary. In a number of cases reported by former and current APS employees on www.ozloop.org, the employees awaiting Return to Work programs had not been not suspended under regulation 3(10)(3) for misconduct. Those employees have reported that they have been unable to return to work after illness or injury simply because the relevant Agency failed or refused to provide a return to work program (RTW) for them. In such cases, as far as I am aware, the law requires that the Agency must to pay salary to the employee, because it has no legislative power to stand down the employee. The employee is entitled to salary for the hours they are fit to work. Example Kim suffered an injury in a car accident on the weekend. She was unfit for work for 10 weeks. Kim’s doctors determined that at the end of the 10 weeks, Kim would be fit to begin a Return to Work program. Her doctors considered that she should commence by working two mornings in the first week, and then gradually build up her hours to full-time over a period of four weeks. Kim’s employing Agency was provided with this information from her doctors but did not take any steps to organize a Return to Work program. While waiting for the Agency to make arrangements for her Return to Work, Kim used up all her paid sick leave. The Agency advised her that she would be treated as being on miscellaneous leave without pay. Kim was not advised that she could seek review of that decision. Kim is still waiting for the Agency to arrange a Return to Work program. Kim is forced to live on a small Centrelink benefit. Not only is Kim suffering financially, she is at a very great risk of a psychological injury. She feels rejected by her employer; she fears she may be losing her work skills because it is so long since she was at work; and she has lost the satisfaction and enjoyment that she used to get from working. Her sense of self-worth is eroding and she is becoming depressed as the wait continues . . . . If an employer refuses to facilitate the return to work of an employee who has been medically cleared for a return to work, it is likely to be acting unlawfully. In addition to the suspension of the employee from their duties without pay, which is unlawful under the Public Service legislation, the employer is also placing the employee at increased risk of further injury. It may be that Kim would have a claim against the Commonwealth for negligence in the event that the situation did in fact lead to a psychological injury. It may even be possible to claim the consequential injury under the SRC Act - who knows? The employment relationship still exists and the Agency’s refusal to arrange an RTW is unlikely to fall within the definition of “reasonable administrative action”. Further, Kim’s doctors had advised that Kim would be able to work fulltime after completing her four week RTW program. Thus Kim would have been working fulltime hours from that time. She would have been earning her full salary. Therefore it seems she has suffered a loss of salary due to the refusal or failure of the employing Agency to implement the RTW program. Clearly, these are questions which require referral to legal professionals in the individual cases. Employees who so affected may be able to recover their lost salary for the period in which they were fit to work. There is also a right to seek compensation for other losses (if any). However, formal legal advice would be necessary to establish the rights of an individual employee in their own particular circumstances. Employees should also be aware that the Fair Work Act generally allows six years for an employee to apply to a court for relief (but note that there are exceptions, including unlawful termination applications). What can an employee do in this situation? In 2010 the Federal Court granted an injunction to an employee in proceedings relating to the suspension of the employee from duties with pay while an investigation for misconduct was on foot.[1] The effect of the injunction was to permit the employee to return to work. The court considered that there was a serious question about the validity of the suspension. The court emphasized the serious adverse impacts on an employee of a suspension from duties, even where the suspension is with pay. Adverse impacts include potential damage to reputation, inability to practice skills and loss of enjoyment of work, none of which can be adequately compensated by an award of damages. [2] It may be possible for an employee who has been excluded from returning to work, to apply to a court for an order requiring the employer to reinstate the employee through implementing an appropriate Return to Work program. It is of course essential that professional legal advice be obtained before taking such action. However, it is noteworthy that the Federal Court’s observations in the above case demonstrate judicial recognition that exclusion of an employee from the workplace is detrimental to them, even when the employee is receiving full pay. [1] Quinn v Overland [2010] FCA 799 [2] Some recent cases dealing with misconduct by public sector employees, AGS Express law, 10 August 2010 |