Managing people

Limited capacity: what if we don't have suitable duties?

What happens when an employer has no suitable duties? Read on for potential options. 

18 May 2022

In this scenario, a company has an employee with more than eight years' service who has a current workers compensation claim. The person has limited capacity. There have not been suitable duties the company could provide to support a return to work plan for almost a year. What options does this company have? Is termination of employment an option?

Each Australian state has slightly differing worker compensation schemes. It is worth referring to the appropriate state legislation. Not only that, each workers compensation claim would need to be considered individually to assess the circumstances and evidence.

Inherent requirements of the role

The ultimate goal of workers compensation is to get the employee well and back to work either in a partial capacity initially until they can build up to complete the full inherent requirements of their role. Research shows that employees have a quicker chance of recovery by getting back into the workplace as early as possible if the duties meets the employee’s capacity to work, and staying active after an injury can often reduce pain symptoms.

Return to work plan

Not all injuries require a return to work plan or time off to recover. In the event an individual is not at full capacity a return to work plan should ensure all reasonable alternatives have been considered to get the employee back to work including: 

  • open regular communication with the employee about how they’re feeling, what support they need, their doctor’s certification, expected certification review date, capacity to work and identify meaningful suitable duties where possible
  • liaise with either an internal or external injury manager
  • sometimes asking the employee for consent to liaise with their doctor is necessary to support the employee in the best way possible as well as provide the doctor with the employee’s job tasks to find out what they have capacity for within their role and, if no capacity, to what degree and what period
  • sometimes, an independent medical exam may be required to assess the employee’s capacity to conduct the full inherent requirements of the role and their prognosis
  • review what all the medical evidence is saying and clarify with the medical team (employee, doctor, other relevant medical practitioners) as required, and
  • document agreed return to work plans including the next review date and repeat each review period.

Suitable duties

If it is deemed there are no suitable duties to match the partial capacity of the employee, the company must be able to demonstrate what was considered including:

  • Who was consulted in the return to work process? For example, the employee, the manager and any other relevant roles within the company
  • A robust conversation occurred between the employee, the company and other relevant parties to assess what suitable work options may be available
  • Identification of what is stopping the company being able to provide suitable temporary duties, and
  • What other assistance or advice was sought while assessing temporary suitable duties.
A company cannot conclude there are no suitable temporary duties until a thorough assessment process has been conducted. 

Considering termination

In order to consider termination, the medical advice needs to confirm that the employee will not be able to get back to full health and therefore will not be able to conduct the full inherent requirements of the role. Only then, may a company consider terminating the employee based on not being able to fulfil the inherent requirements of the role.

In addition, in New South Wales, Section 248 of the Workers Compensation Act 1987 states “an employer must not dismiss a worker because of a work-related injury within six months from when the worker first became unfit as a result of the injury.”

If the employee is not going to recover to be able to fulfil the inherent requirements of the role and it meets the state workers compensation legislation, then a termination may be warranted at this stage. 

If proceeding to terminate, procedural fairness must always be followed to ensure the termination is not considered harsh, unjust or unreasonable which would be in breach of section 385 of the Fair Work Act.

Siobhann Provost

Senior Writer, My Business

Siobhann has over 18 years human resources business partnering experience in large organisations. She more recently established and led a people advice team of senior workplace advisors before moving into content writing.

Premium workplace content

Enjoy unlimited access to our extensive library of business articles, tools and resources plus start answering your HR and workplace questions with our Ask an Expert service for as little as $1 per day*.

Found this useful?

Subscribe to our newsletter and receive the best business tips and articles straight to your inbox.

Thank you for signing up to our newsletter. You're one step closer to receiving more insightful information to help better your business.

We take your privacy seriously and by subscribing to our newsletter you agree to the terms of our Privacy Policy available below.