This document summarizes a presentation about dealing with ill and injured workers, both for work-related injuries covered by workers' compensation and non-work injuries. The presentation discusses inherent job requirements, legal risks around unfair dismissal, discrimination, and privacy, managing return to work obligations for work injuries within workers' compensation systems. It also covers conducting medical examinations, terminating claims, and handling non-work injuries. The presentation provides an overview of relevant legislation and case law regarding an employer's duties in these situations.

1. Dealing with
Ill and Injured
Workers
- Workers’ Compensation
and non-Workers’
Compensation Injuries
Presentation by
Andrew Douglas
Wednesday, 21 March 2018

2. PAGE
SIA Vic Branch – Return to Work
Managing Health in
the Workplace
• Inherent requirements – what is it
• Infrastructure – contract, position description, task
analysis, policies
• Choice black hat instrumentalism or restorative
wellbeing
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
2

3. PAGE
Why is safety so
important?
• Mixture of common law and statute
• Employers fit for inherent requirements
• Employers exercise reasonable care for foreseeable
injury
• Employers obligation to check
Burke v Suncorp [2015]
Robinson v State of QLD [2017]
Kubat v Northern Health [2015]
Demosthenos v Jemena [2017]
3
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
SIA Vic Branch – Return to Work

4. PAGE
The Inherent
Requirements
Genuine Requirements:
X v Commonwealth (199)
Dziurbas v Mondelez [2015]
Boags v Button [2010]
Brooke v Wambo [2018]
4
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
SIA Vic Branch – Return to Work

5. PAGE
Medical Certificates
and Statutory
Declarations
• Check signed by doctor:
Jeong v Alpha Flights [2016]
• Obligation NES:
s96, 97 and 107 (AILP v Qantas (2014) – requires
further information, as soon as reasonably practicable.
• Awards and Enterprise Agreements, contracts and
policies and procedures:
Anderson v Crown [2008]
5
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
SIA Vic Branch – Return to Work

6. OHS Employee Obligations
STANDARD OF CARE (s.25 OHS)
Reasonable Care
Not injure self
Employee obligation
(fit for work)
Not injure others
Comply with lawful and
reasonable direction
NB: Not recklessly engage in
conduct which places person at
risk of serious injury (s.32 OHS)
DUTIES OF CARE (s.25 OHS)

7. Employer Obligations
STANDARD OF CARE
Reasonable Practicability (s.20 OHS)
What is the risk?
C/L – reasonable care to
prevent forseeable injury
What is the control?
Safe work environment (s.21 OHS)
(Environment you control (s.4 OHS))Monitor health (s.22 OHS)
Is there a hazard?
* S.143 – Attribution to Company
DUTIES OF CARE (s.21 & 22 OHS)

8. (s.144 Duty) Officer Duty (s.9 CA)
STANDARD OF CARE
Officer Reasonable Care
• Which officer new
• Decision making capacity
of officer
• Who else at fault
(Safe work environment
includes a safety system -
Implied duty of due diligence)
DUTY BREACH BY COMPANY

9. PAGE
Legal Risks • FWA
o Unfair dismissal (Stergioti v Toyota [2004] AIRC 1137)
o Adverse action (Penglase v Allied Express [2015]
FCCA 804)
• Discrimination
o Dziurbes v Mondelez [2015] VCAT 1432
o Chivers v State of Queensland [2014]
• Workers’ Compensation
o Mutual duties of RTW
o Power to direct assessment
o s588 risks
9
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
SIA Vic Branch – Return to Work

10. PAGE
Legal Risks (cont’d) Privacy Law
• Medical information caught by Health Records
legislation (not employment record exemption) but
see OHS reason can direct examination and/or reject
medical certificate:
o AIPA v Qantas [2014] FCA 32
o Marshall v Commonwealth [2012] FWCA 1052
o Columbine v GEO [2014] FWC 6604
10
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
SIA Vic Branch – Return to Work

11. PAGE
Managing Health • What is the job?
o Cosma v Qantas [2002] FCA 640
• Was the injury at work or outside work (issue work
substantial contributor?)
• What is the outcome the business wants?
11
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
SIA Vic Branch – Return to Work

12. PAGE
Work Injury • 10 day self insurance – medical direction
• 28 day liability decision (15 day circumstances
investigation)
• Claim rejected:
o non-work injury test (discrimination) – unfairness risk
dismissal until obligation period expires
• 12 month obligation period
o can terminate (Stergioti v Toyota) but premium risk!
o remember “reasonable adjustments”
• Premium risk finish 3 years
• S111-115 RTW obligations – participate in medical
review
12
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
SIA Vic Branch – Return to Work

13. PAGE
Non-Work Injury • 3 month temporary absence
• Reasonable adjustment
• Stergioti v Toyota
13
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
SIA Vic Branch – Return to Work

14. PAGE
Medical Examination • Always employer obligation determines inherent
requirement / reasonable adjustments – not rely
upon Workers’ Compensation s588
• Not everyone – TWU v Cement Australia
• Reasonable Cause (OHS/CL)
– Ramsay v Blackadder [2013] 127 FCA 381
• Sudden changes – Grant v BHP [2014] FWC 1712
• Not help – Columbine v GEO
• Not participate in process – Laviano v FWO [2017]
• S113 – Participate in assessment
14
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
SIA Vic Branch – Return to Work

15. PAGE
Termination of Claims • Kerridge v Jones
• Underlying capacity
15
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
SIA Vic Branch – Return to Work

16. PAGE
Non-Work Injury • Not just do for the job – if risk to do job
o Dziurbas v Mondelez
• Disaggregation
o Grant v OPP [2014]
16
Dealing with Ill and Injured Workers
- Workers’ Compensation and non-Workers’ Compensation Injuries
SIA Vic Branch – Return to Work

17. Andrew Douglas
Managing Principal
T +61 3 9654 4474
M +61 488 151 503
E andrew@fcwlawyers.com.au