1. A discussion of the Walmsley decision Presented by Joe Parisi
Level 4, 41 Currie Street
ADELAIDE SA 5000
(08)
Your webinar host
Section 18 Update
A discussion of the Walmsley decision
Presented by Joe Parisi

2. 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

3. 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

4. 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

5. Facts

6. 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…

7. 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!!

8. 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

9. 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.

10. 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

11. 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.

12. Questions so far?

13. 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. 

14. 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?

15. 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.

16. 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

17. 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?

18. 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.

19. Any Questions so far…

20. 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

21. 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

22. Final Questions….