Each State has distinct legislation relating to workers compensation. Each State also has distinctly different legislation in relation to disability discrimination.
In this blog we consider the situation in Victoria in particular, following the decision in Butterworth v Independence Australia Services.
Butterworth is a decision of the Human Rights Division of VCAT. In that decision, Member Wentworth determined that an employer had an obligation to make ‘reasonable adjustments’ to an employee’s work if the employee had a disability (whether those injuries were the subject of a workers’ compensation claim or not). Those reasonable adjustments can include adjustment of the employee’s duties, qualified by the ‘genuine and reasonable requirements’ of the employment.
The Member emphasised that, when terminating the employment of an injured employee, it is not sufficient to simply look at whether the employee was fit to return to ‘pre-injury duties’ before terminating the employee’s employment. An employer must also consider other obligations it has to the employee, such as those obligations under the Equal Opportunity Act 2010 (Vic). ¹
Ultimately, the employer continues to have obligations to an injured employee under anti-discrimination law in addition to the obligations under worker’s compensation law. Breach of those obligations may entitle the terminated employee to remedies for economic loss (including loss of potential future earnings) as well as non-economic loss.
If you have any concerns about termination of your employment whilst injured, ill or suffering from a disability please give us a call on (03) 5722 4681.
MORGAN COUZENS LEGAL
¹Please note that anti-discrimination law in NSW differs particularly in relation to an employer’s obligations. Please contact Morgan Couzens Legal to discuss your particular circumstances if anything in this article raises issues relevant to you.