Employer fails to keep worker after injury, faces unfair dismissal claim

The Fair Work Commission (FWC) recently dealt with a worker’s claim that he was unfairly dismissed after suffering from an injury. He said the employer failed to keep him as an employee after the incident and didn’t properly accommodate him and his restrictions.

The worker, Darryl Butler, filed an application with the FWC, seeking a remedy for an alleged unfair dismissal against his former employer, Norton Gold Fields Pty Ltd.

Butler sustained an injury at work on 13 July 2021, preventing him from performing his role as an excavator operator, which led to his dismissal on 4 August 2023.

The worker started his employment in July 2014 as a production excavator operator at the Federal Gold Mine in Western Australia. Operating on a 12-hour roster with a seven-days-on, seven-days-off cycle, his duties required spending 10 to 11 hours each shift in the cab of an excavator.

Worker’s injury at the site

On the day of the incident, 13 July 2021, Butler was loading a truck when something broke behind the excavator seat, causing him to fall backward. Despite reporting the incident, he continued to work the next day, experiencing pain that limited his time in the excavator cab.

He then undertook light duties from around 16 July 2021, signing forms for workers’ compensation and working 10-hour shifts while being paid for 12 hours.

Engaging in various light duties, such as safety inspections, signage placement, and vehicle maintenance, Butler hoped to continue modified duties until undergoing back surgery. His desire was to utilize accrued annual leave and long service leave during his recovery.

Despite his efforts, Butler’s condition persisted, prompting consultations with medical experts and a recommendation for back surgery. The parties could not settle on workers’ compensation terms until a meeting on 25 October 2023, where he agreed to a $48,000 settlement.

Worker’s limitations

According to records, an evaluation by an orthopaedic surgeon revealed Butler had not recovered from the injury and could pursue light to moderate manual duties. However, the report also revealed that he could not operate machinery contributing to his condition. The doctor recommended surgery, and another medical report suggested a recovery timeframe of three to six months.

Concerns about Butler’s condition led to a meeting on 19 July 2023, where the employer considered advice from professional and medical experts.

On 31 July 2023, Butler attended another meeting where the employer, citing cost pressures and operational requirements, informed him that his position as an excavator operator could no longer be held open.

The employer issued a show cause letter on 2 August 2023, and Butler responded, expressing his frustrations and willingness to work alternative roles.

On 4 August 2023, the employer officially terminated his employment, citing his inability to return to the pre-injury role, the absence of suitable alternative roles, operational pressures, and the exhaustion of available alternatives.

Was there unfair dismissal?

The employer’s position was that there was “a valid reason for terminating Butler’s employment – that the medical evidence showed that Butler was unable to fulfil the inherent requirements of his pre-injury role at the time of termination, or for the foreseeable future.”

The FWC said that the worker was “unfortunately injured two years ago,” and since then the employer had tried to accommodate him and his limitations at work.

The employer “has provided him modified light duties for those two years where he worked 10 hours a day but was paid for 12 hours,” the FWC said.

“[It] also attempted to find other alternative roles for Butler but [was] unable to find roles suitable for his restrictions. [It was] not in a position to continue keeping Butler’s role open for him,” it added.

Thus, the FWC said that the dismissal was not unfair. Consequently, it dismissed the worker’s application against the employer.

Source: HRD

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