A discussion of the Walmsley decision Presented by Joe Parisi Level 4, 41 Currie Street ADELAIDE SA 5000 (08) 8215 7006 jparisi@gclegal.com.au Your webinar host Section 18 Update A discussion of the Walmsley decision Presented by Joe Parisi

Introduction Walmsley is the first decision of the Tribunal dealing with s18 The decision represents a “power shift” Why it is important to have a good understanding of s18 and the Walmsley decision

Overview Facts in Walmsley’s case Constitutional Issues Arguments raised by the parties How section 18 was applied and interpreted by the Tribunal Lessons from the decision of the Tribunal

Facts of the case Mr Walmsley was employed by Crown Equipment as a Field Service Technician Crown operates Australia wide and hires out lift trucks and other material handling equipment History of work injuries From March 2011 until April 2015 Mr Walmsley was either off work or on modified duties for 776 days

Facts

Facts Crown terminates Mr Walmsley’s employment Mr Walmsley lodges an unfair dismissal application with Fair Work The application is out of time and therefore dismissed Normally that would be the end of the matter, but not anymore…

Facts Mr Walmsley serves Crown with a notice under s18(3) seeking suitable employment either in: Pre-injury role or Trainer Spare parts interpreter Yard Person Customer Care Sales Manager Note – Manager!!

Facts Crown declines to provide suitable employment Mr Walmsley lodges a s18 Application in the South Australian Employment Tribunal seeking an order that Crown provide suitable employment

Position of the Parties at Trial Mr Walmsley’s position was that he could return to the suitable employment he was performing before being terminated. Crown’s position was that it could only provide duties by way of a compilation of tasks taken from other employees which, after Mr Walmsley’s termination, has been re-allocated to those employees.

Legal Arguments Crown argued that a s18 application cannot be made by a worker who is no longer employed Crown argued that s18 is unconstitutional Crown argued that it was not reasonably practicable to provide suitable duties

Effect of Dismissal Can a s18 application be made by a worker who is no longer employed by the pre-injury employer? Answer: Yes A s18 application can be made by a worker whether or not the worker has been dismissed by the pre-injury employer after the injury.

Questions so far?

How s18 is applied Stage 1 – consider whether any of the grounds in s18(2) apply:         (a)   it is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies on the employer); or          (b)   the worker left the employment of that employer before the commencement of the incapacity for work; or          (c)   the worker terminated the employment after the commencement of the incapacity for work; or          (d)   new or other employment options have been agreed between the worker, the employer and the Corporation under section 25(10); or          (e)   the worker has otherwise returned to work with the pre-injury employer or another employer. 

How s18 is applied If any of the grounds in s18(2) apply then the Application must be dismissed and the worker will not return to work. In this case, Crown argued it was not reasonably practicable. What does the Tribunal take into account when considering whether it is reasonably practicable to provide suitable employment?

How s18 is applied Stage 2 – Is it reasonable for the employer to provide the employment sought by the worker in the s18 Application? This involves looking at the particular employment sought by the worker. Stage 3 – Are there grounds upon which the Tribunal should not order that the employer provide suitable employment.

How s18 is applied Stage 3 involves a consideration of issues such as: Misconduct Workplace conflict Operational developments such as actual or pending retrenchments Other circumstances which might have an adverse impact on an employer’s ability to provide suitable employment

How s18 is applied - Summary Stage 1 Do any of the grounds in s18(2) Apply? Stage 2 Is it reasonable for the employer to provide the employment sought by the worker in the s18 Application? Stage 3 Other reasons why the Tribunal should not order suitable employment?

Outcome of the Case The Tribunal ordered Crown to provide suitable employment The Tribunal left it up to Crown to identify the duties having regard to its operational requirements but allocating as many duties from Mr Walmsley’s pre-injury role as possible. Crown is expected to re-establish the employment contract.

Any Questions so far…

What now? Ensuring your business understands s 18 and the Walmsley decision Updating Policies and Procedures (workers comp and HR) Policies and Procedures should reflect that an inquiry into whether suitable employment exists will need to involve: Work and employment history of the worker The extent of the worker’s recovery and prognosis The worker’s skills and retraining potential The employer’s size Operational circumstances of the employer Health and safety issues

What now? Know how to avoid/defend s18 applications Exceptions that apply Unrealistic request for suitable duties (i.e. the manager’s position) Keep good records and have good evidence 1 July 2017 is coming! Consider whether it is necessary to shut down any potential s 18 Applications now: Redemptions with a resignation Continue with suitable employment Provide re-training and look for new or other employment options

Final Questions….