Understanding the Legal Framework

Under Section 49 of the Workplace Injuries Management and Workers Compensation Act 1998, employers are mandated to provide suitable employment to injured workers.

Section 49 (2) states that:

‘The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury.’

These obligations remain even if liability is denied, as per Section 41A of the 1998 Act.

The first step in resolving a suitable duties dispute is initiating dialogue with the employer. It is essential that employers are aware of their obligations, and it is recommended that workers request the reinstatement of suitable duties tailored to the worker’s capabilities. Employers are required to search for suitable duties for injured workers within their organisation. It must be shown that they have taken reasonable steps to find suitable work, even if the result is that suitable work is not available.

If dialogue with the employer fails to yield results, it may be necessary to escalate the matter by referring it to the Personal Injury Commission. This formal step signals the seriousness of the issue and triggers a structured process for resolution.

It is imperative to have sufficient supporting evidence prior to filing in the Personal Injury Commission. This may include supportive medical evidence, a vocational assessment and a comprehensive statement which details the worker’s capabilities. These statements should be supported by medical or vocational evidence and should highlight the specific duties the worker can perform within their limitations. Additionally, gathering evidence of job vacancies within the employer’s organisation reinforces the availability of suitable roles.

Expedited Assessment Process

 If the matter is referred to the Personal Injury Commission, it undergoes an Expedited Assessment. During this process, an appointed Registrar of the Personal Injury Commission may make recommendations aimed at resolving the dispute in a timely manner. It is essential for the employer to demonstrate diligent efforts in seeking suitable duties where reasonably practicable.

Addressing Challenges

In many cases, employers may cite Section 49(3)(a) of the 1998 Act, which states the requirement to provide suitable employment does not apply if ‘it is not reasonably practicable to provide employment in accordance with this section’. However, it is crucial to challenge such assertions if there is compelling evidence of the worker’s capabilities and the availability of suitable roles within the organisation.

At Turner Freeman, we have specialist workers compensation lawyers who will assess your case and provide personalised advice regarding your legal entitlements. Our lawyers are located across NSW including offices in Sydney, Parramatta, Penrith, Narellan, Windsor, Toronto, Newcastle, Wollongong, Gloucester. Contact us today on 13 43 63 or 02 8833 2500.