By

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

A woman was awarded reinstatement after the NSW Industrial Relations Commission found that her employer’s fear she would relapse into alcohol dependency was not justified by the evidence. At the time, she had been abstinent for 18 months, which the commission regarded as sufficient evidence of fitness to resume work.

Facts of case

The employee was previously diagnosed with a work-related major depressive disorder. Three years later, her employment was terminated on medical grounds following medical opinion that she would never recover sufficiently to perform the inherent requirements of her job. She received workers’ compensation and a common law damages payment.

Prior to termination of employment, she developed alcohol dependency as a result of trying to cope with depression, but after termination was able to obtain other part-time work.

About two years after termination, she applied to return to her old job, relying on provisions of the NSW workers’ compensation legislation that allow employees to do so if they are medically certified as fit to return to work. She provided two medical certificates to support her application. The employer requested further medical information from her several times, then relied on it to deny her request to return. One of her original certificates was vaguely worded, and the doctor failed to provide further information on request. The other doctor would not provide a guarantee of no relapse.

The employee appealed against the decision not to reinstate her.

Decision

The commission found in favour of the employee. At the time of first applying for reinstatement, she was not certified as fit to return. Her GP’s evidence was that she was not fit because she was still trying to cope with alcohol dependency, but her psychiatrist’s report said that she was fit.

The employer based its decision on the GP’s report, plus one from an addiction therapist that claimed she was still alcohol-dependent and at “high risk” of a “heavy relapse”, and more so if she returned to work. However, the commission noted that she had been abstinent for 18 months at the time of hearing the case, and was able to represent herself at the commission.

The commission added that the legislation did not require an employee to have completely recovered; the threshold was that he/she had recovered sufficiently to be fit to resume work. In this case, the benefits of returning to work outweighed the risk of re-injury.

What this means for employers

This was a public service employment case, so was decided by the NSW Industrial Relations Commission, not the Fair Work Commission. It provides some insight into how the commission assesses medical evidence in cases where injured employees seek to be reinstated. The case used the term “gateway” to refer to the test threshold, and noted that the commission has the discretion to decide whether an employee is fit to return to work. It also noted that the workers’ compensation legislation provisions should be regarded as having a “remedial” intention.

Read the judgment

Betts v Health Secretary in respect of Health Share [2023] NSWIRComm 1054 (9 June 2023)

Mike Toten

Freelance Writer

Mike Toten is a freelance writer, editor and media commentator who specialises in research and writing about HR best practices, industrial relations, equal employment opportunity and related areas. Mike has over 30 years' writing experience, including writing and editing Human Resources Management