The QIRC rejects employee’s bid to return to work despite favourable medical assessments

The Queensland Industrial Relations Commission (QIRC) has rejected an employee’s claim that he was unlawfully discriminated against after his employer refused his request to return to work following a non-work related injury. The employee underwent multiple medical assessments which concluded he was able to resume normal duties, which the employer, for safety-related reasons, chose to reject. The decision reinforces that medical assessments are only one factor in determining if an employee is able to safely perform the inherent requirements of their substantive position.

Background

The Applicant commenced employment as a casual Tug Master/General Purpose Hand with Daltug Pty Ltd (Daltug) on 9 October 2019.[1] On 5 July 2021, he was promoted to the position of General Purpose Hand (GPH) on a full-time, permanent basis.[2] However, shortly before commencing the role, he ruptured his Achilles tendon. This resulted in his start date being delayed on several occasions to accommodate his recovery.

On 7 October 2021, the Applicant advised Daltug that he had obtained verbal clearance from his surgeon and physiotherapist that he could return to work.[3]

Daltug then organised for the Applicant to undergo a full fitness capacity test with its occupational health provider, BCERTA. The capacity test found that whilst there is a low to medium risk that the injury could potentially affect the Applicant’s employment, it was permissible for him to resume work duties.[4]

However, Daltug’s safety officer uncovered that the Applicant had advised BCERTA that he was employed as a tug master, rather than the more physically challenging role of a GPH.[5] Daltug was concerned by this inconsistency as a tug master works inside the cabin when at sea, while a GPH works outside the cabin and is therefore exposed to the elements which can be unpredictable and unsafe.

The safety officer then contacted the medical assessor who conducted the capacity test to confirm if he had a full understanding of the nature of the work the Applicant would be required to undergo as a GPH (rather than as a tug master). The assessor advised that he could not guarantee the Applicant was “100% fit” to return as a GPH and that “he would be required to stop work and sit down if any twinge or other event is experienced.”[6]

Daltug then notified the Applicant that it would not allow him to return to work as a GPH as it posed a safety risk to him and the employees he would be required to work with whilst out at sea.[7]

The Applicant then lodged a complaint with the QIRC on the basis that Daltug had directly discriminated against him within the meaning of section 164A of the Anti-Discrimination Act 1991 (Qld) (AD Act). Relevantly, the Applicant sought $1 million in general and aggravated damages and reinstatement, amongst other conditions.

QIRC hearing

The primary issue before the QIRC was whether the Applicant had been discriminated against on the basis of a protected attribute, being the physical impairment caused by his Achilles tendon injury.

It was the Applicant’s submission that Daltug had no documentation to support its safety related claims in light of the capacity test.[8]

Daltug, however, submitted that:

1. the Applicant was unable to fulfil the occupational requirements of the GPH role following his injury;[9]
2. no reasonable adjustments could be made to accommodate the Applicant’s injury, especially whilst out at sea; and[10]
3. the medical finding that the Applicant could safely return to work was invalidated when he mischaracterised his role as a tug master, rather than as a GPH.[11]

As a part of its evidence, Daltug played a video which showed that GPHs had to contend with waves as high as five metres and winds of between 45 and 50 knots when out at sea.

QIRC decision

The QIRC dismissed the Applicant’s discrimination claim as it found that:

1. it was reasonable for Daltug to have concerns with the findings in the capacity test as they were based on the Applicant returning to work as a tug master, rather than as a GPH; and
2. the reasonable adjustments that were needed to accommodate the Applicant’s injury (including stopping work whilst out at sea) would cause Daltug unjustifiable hardship, as they would need to halt work for extended periods in potentially dangerous weather conditions.

Conclusion

This decision confirms that employers are permitted to question the findings of a medical assessment in circumstances where they are concerned an employee may have downplayed their substantive duties or when there is reasonable doubt as to whether an employee can safely perform their role. It is our recommendation that employers supply a copy of the employee’s position description to the provider undertaking a medical assessment to avoid any confusion as to the employee’s substantive duties.

Employers should also remember that injured employees are entitled to ‘reasonable adjustments’ when attempting to return to work, unless the adjustment would cause unjustifiable hardship for the employer, which is decided on a case-by-case basis.

There is a myriad of federal and state discrimination, and work, health and safety laws when it comes to the management of ill and injured employees, and Gadens is well-positioned to assist businesses in this area.

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Authored by:

Jonathon Hadley, Partner
Jacob Stacey, Solicitor

[1] Medwell-Everett v Daltug Pty Ltd & Ashworth [2024] QIRC 2 at [3].

[2] Ibid at [4].

[3] Ibid at [10].

[4] Ibid at [14].

[5] Ibid at [17].

[6] Ibid at [19].

[7] Ibid at [130].

[8] Ibid at [54].

[9] Ibid at [64].

[10] Ibid at [65].

[11] Ibid at [61].