- Introduction
This case concerns Kevin Jenkins, a former wardsperson with the Nepean Blue Mountains Local Health District (the Respondent), who sought reinstatement of his position after a workplace injury led to his dismissal. This case highlights the importance of the Workers Compensation Act 1987 (NSW) (WC Act), particularly Part 8, which allows an injured worker to seek reinstatement following dismissal due to a compensable injury.
- Background
Mr. Jenkins commenced employment with the Respondent in July 2002. In November 2016, he sustained a lower back injury while helping nursing staff move a patient. After a period of absence and return to work under light duties, the Respondent terminated his employment on medical grounds in July 2020. Mr. Jenkins initially challenged the decision through an unfair dismissal application, which was dismissed in March 2022.
In March 2021, Mr. Jenkins’s doctor issued a certificate stating he was fit for pre-injury duties. His union representative applied for his reinstatement in May 2021. However, the Respondent denied the application, and Mr. Jenkins did not pursue it further. In September 2021, Mr. Jenkins completed a ‘Work Related Activities Program’ (WRAP) with a rehabilitation firm, which issued a report indicating his fitness for pre-injury duties. A second certificate certifying his fitness was issued in February 2022.
Despite this, the Respondent denied a second reinstatement application in April 2022, disagreeing with the conclusion of the medical certificates and the WRAP report. This led to Mr. Jenkins’s application to the Commission in April 2022, seeking reinstatement, continuous employment recognition, and back pay from May 2021.
III. Legal Principles and Decision
The presiding officer had to decide, per s 243(2) of the WC Act, whether Mr. Jenkins was fit for the wardsperson role and whether he should be reinstated. The officer was satisfied that Mr. Jenkins was fit for his pre-injury duties and should be reinstated, but did not agree that his period of employment should be considered unbroken, and limited back pay to the amount he would have earned from October 2022 onwards, minus any workers compensation and other remuneration received12.
- Implications for Future Personal Injury Cases
This case highlights the rights of workers under the WC Act, specifically the right to seek reinstatement after a dismissal related to a compensable injury. For future personal injury cases, this case emphasizes the importance of a comprehensive and objective evaluation of a worker’s fitness for their pre-injury role. Employers should be cautious about dismissing employees on the grounds of injury and should ensure that any such decision is backed by solid medical evidence.
Moreover, this case underlines the role of the Commission in balancing the rights of the worker and the employer. The Commission must carefully consider the evidence, including medical certificates and rehabilitation reports, in order to determine whether the worker is indeed fit for their pre-injury role. Additionally, the Commission must make a fair determination on matters of back pay, taking into account the date of application for reinstatement and any other remuneration the worker may have received.
This case serves as a reminder that an employer’s refusal to reinstate does not mark the end of the process. Workers who believe they are fit for their pre-injury role can apply to the Commission for an order of reinstatement, as provided by the WC Act. Employers, on the other hand, must be prepared to justify their refusal to reinstate, particularly in light of solid evidence showing a worker’s fitness for their pre-injury role.
In conclusion, the case of Jenkins v Secretary of the Ministry of Health on Behalf of Nepean Blue Mountains Local Health District is a significant decision that sheds light on the rights of workers under the WC Act, the importance of objective medical evidence in the assessment of a worker’s fitness, and the role of the Commission in providing a fair and balanced resolution to such disputes.
