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Limelight 01/19

Tribunal refuses suitable employment order – State’s largest employer successfully defends s18 application

In the recent decision of Oldman v The Department for Education & Child Development[1], the President of the South Australian Employment Tribunal (Tribunal) made a number of important statements of general principle in relation to the scope of the statutory obligation imposed on employers pursuant to section 18 of the Return to Work Act 2014 (SA) (RTWA 2014). The previous leading decision was Walmsley’s case[2].

Facts

The applicant was incapacitated for her usual employment as a full time primary school teacher as a result of a compensable hip injury.

The applicant sought an order pursuant to section 18 of the RTWA 2014 that her employer provide her with suitable employment as a full-time school counsellor, having rejected the employer’s offer of employment as a school services officer level 2.

The President of the Tribunal, Justice Dolphin, observed that the specific employment nominated by the applicant in the application ‘will frame the relevant inquiry’’[3]. The role of the full-time school counsellor was usually available at a more disadvantaged school. In the less disadvantaged schools, it was usually a part-time role in conjunction with teaching duties[4]. Such a role at a more disadvantaged school was also more complex, demanding, unpredictable and potentially volatile: referred to by Justice Dolphin as the ‘unstructured component’.

Issues

The principal issues for adjudication were whether:

  • the applicant was ‘suited and fit’ for the role nominated by her of a full-time school counsellor;
  • employment as a full-time school counsellor was equivalent to employment as a teacher; and
  • the Tribunal should exercise its residual adjudicative function to order the employer to modify the duties of a full-time school counsellor so as to enable the applicant to perform them.

Suited and Fit

The applicant was confronted with the tension of reconciling a lack of any capacity to work as a teacher on any basis yet still retaining the capacity to work as a full-school time counsellor.

Justice Dolphin, significantly assisted by evidence from witnesses actually employed in the position of a full-time school counsellor at disadvantaged schools, ‘… was not convinced that [the applicant] has the physical attributes necessary to deal with the elements of the unstructured component of the full-time counsellor role’.[5]

Justice Dolphin concluded the applicant did not establish that she ‘was suited and fit to the position of a full-time school counsellor’.

Equivalent Employment

Justice Dolphin then proceeded to consider the meaning and application of the expression ‘equivalent employment’[6], making reference to Harrington v Healthscope SA[7], in which the Full Bench of the Tribunal commented that an offer of part-time employment to an applicant who was working full-time immediately before being injured may not be equivalent.

Justice Dolphin observed that in assessing equivalence ‘… there will be many other features [apart from whether or not the same hours] of one form of employment, as compared to another, that will go to the question as whether same are equivalent’. His Honour did not consider that employment as a full-time primary school teacher and employment as a full-time school counsellor were equivalent, as the latter involved:

  • a promotion;
  • a leadership role covered by a different pay schedule and banding classification; and
  • a merit based selection in accordance with s49 of the Public Service Act 2009 and the Department for Education Policy.

Justice Dolphin, noting that ‘the process is somewhat circular’, found that, having held that the applicant had not established that she was suitable and fit for the nominated position of a full-time counsellor, and that such employment was not equivalent, it therefore followed that the employer had discharged its onus that it was not reasonably practical for it to provide such employment.

Adjudicative Function

Justice Dolphin then proceeded to consider the submission on behalf of the applicant that it should exercise its adjudicative function pursuant to section 18(5) or the RTWA 2014 to order the employer to ‘…modify and alter that position [of full-time school counsellor] to the necessary extent that she is able to do it[8].

Justice Dolphin noted that the applicant in her application had nominated  that she was capable of performing employment as a full time school counsellor. His Honour considered that this nomination ‘… create[d] a positive obligation on the person seeking the provision of a suitable employment order to frame the nature of the employment sought; not the employment that is not sought’. His Honour also noted that the applicant conducted her case on this basis and not on the basis that she was capable of performing such role on the modified basis: the terms of the employment nominated by the applicant and the basis upon which she conducted her application provide the context for the exercise of any adjudicative function.

Justice Dolphin also cautioned against the uncritical reliance on the employer noting that: ‘the blithely made statement that because we are dealing with the largest employer in the State, it followed that there was the greatest ability to be able to accommodate disability and impairment, is in my view an unwise starting point to understand the framework of these proceedings.’

Justice Dolphin declined to exercise any residual discretion in favour of the applicant. Paramount in His Honour’s reasoning and conclusion was the recognition that to do so ‘… would be to transform the essential elements of the full-time school counsellor position into something altogether different than it is supposed to be …” which may compromise the safety and wellbeing of both the applicant and the students with whom she would be working.

Summary

This decision is an important recognition of the limits arising from the requirement of equivalent employment in section 18 of the RTWA 2014 and also the necessity to ensure that any modification of proposed suitable employment does not so alter the essential elements of the role as to compromise its purpose and objectives – in this case to promote the safety and wellbeing of students at a disadvantaged school.

Gilchrist Connell acted for the successful employer.

[1]        Oldman v The Department for Education and Child Development [2018] SAET 225 delivered on 24 December 2018
[2]        Walmsley v Crown Equipment Pty Ltd [2016] SAET 4
[3]        In Walmsley’s case, Deputy President Judge Hannon said that the relevant question was “whether an order should be made for the specific employment nominated by the worker”.
[4]        It was the applicant’s case that she was incapacitated for any teaching duties.
[5]        This included activities such as the amount of walking required and ability to respond to volatile situations.
[6]        s18(1) of the RTWA provides that ‘… the employer from whose employment the injury arose (the pre-injury employer) must provide suitable employment for the applicant (the employment being employment for which the applicant is fit and, subject to that qualification and this section, so far as reasonably practicable the same as, or equivalent to, the employment in which the applicant was working immediately before the incapacity).’
[7]        Harrington v Healthscope SA [2017] SAET 65 [13]
[8]        This submission relied upon the observation in Walmsley’s case namely: [the provision of] ‘suitable employment may require that the applicant again be provided with a collation of modified duties, some or all of which may have to be transferred from other employers…

 

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