Don’t terminate – adjust!

by 29 Jun 2016
Employers have been placed on notice: if your employees are injured or suffer a disability, avoid discrimination accusations by adjusting their role so they can continue working. 

The Victorian Civil and Administrative Tribunal (VCAT), late last year, held that when an employee is injured the onus is on the employer to investigate the injured person’s role and make reasonable adjustments to that role to allow their employment to continue.

In the Dziurbas v Mondelez Australia Pty Ltd case a 63-year old employed by Mondelez Australia worked on a production line machine. In September 2011, the worker injured his elbow working on a machine and made a workers' compensation claim. The worker returned on light duties after five days and his duties were managed until January 2013 when he was fully recovered from the injury.

During the course of the compensation claim the injured worker developed hernia symptoms, had surgery and took-off eight weeks for his recovery. And in October 2013, the worker was terminated because he didn’t have the capacity to perform his role. The decision was largely based on an independent medical report following two inconsistent reports from the worker’s doctor.

The employer had not properly investigated the injured worker's role before the worker was terminated.

The VCAT found the employer – Mondelez – had not properly investigated the worker's role before he was terminated. It turned out that as well as having to operate a steel bank machine, the worker also performed a myriad of other less physical tasks. This meant Mondelez's claim that the worker wasn’t able to undertake the role, or at parts of it, was unfounded. VCAT held the worker had been directly discriminated against because of his disability.

VCAT also held the employer had not made appropriate enquiries about whether the worker’s role could be reasonably adjusted to accommodate him, a breach of section 20 of the Equal Opportunity Act. Mondelez failed to obtain medical evidence about what reasonable adjustments could be made. 

An award of $20,000.00 was made to compensate the injured worker for injury to his feelings. 

The lesson is clear: have all the facts about the worker’s injury and the worker’s role. And adjust the role rather than terminate the worker.



  • by 29/06/2016 11:35:04 AM

    All it means is you have to do it right. I don't think employers should be afraid of managing injured workers, which may include termination where appropriate. The broader impact that finding ongoing alternative or "light duties" has on other employees has to be considered as well

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