The SRC Report: Part 1 Rehabilitation Series: Decision Making Under s36 and 37

Commonwealth Compensation

minutes reading time

DATE PUBLISHED: May 26, 2021

ATHENA CAINS Welcome to the SRC report. I'm Athena Cains, Principal at McInnes Wilson Lawyers. And today, I'm joined by Sama Khan, an Associate in our team. Welcome to your first SRC report, Sama.

SAMA KHAN Thanks, Athena. It's a pleasure to be here.

ATHENA CAINS This is the first in a two-part rehabilitation series on decisions made under Section 36 and 37 of the SRC Act, or the rehabilitation provisions. In this first part, Sama and I will talk about decision-making under Sections 36 and 37. And in part two, we will review cases that deal with the rehabilitation provisions to assist HR delegates to avoid making unlawful decisions. This is because illegal or unenforceable decisions do not help anyone return to work and have meaningful employment, which, after all, is the ultimate goal of rehabilitation. So first, let's address the purpose of rehabilitation. As you all know, the purpose of the rehabilitation provisions is to assist the employer in getting the employee back to suitable employment as quickly and as safely as possible.

The advantage of this is that the employee is meaningfully engaged, and as we all know, good work is good for you. And the employer also has their employee back at work, which is fantastic for ASL caps. As I've mentioned, there are two rehabilitation provisions in the SRC Act, Section 36, which is basically your fitness for duty provision, and Section 37, which is the rehabilitation program provision. Both provisions are the only provisions in the SRC Act that give the employer some control over the rehabilitation of their employee under the SRC Act. The employer retains all of their rights and responsibilities as an employer under their EA, the Public Service Act and the Fair Work Act.

SAMA KHAN And, I think that is a crucial point, Athena. The SRC Act is not the only source of authority that an employer has over their employees. It's essential to remember that NG employees are first and foremost employees, and employees do have duties concerning them, but also, employees have duties owed back to their employer.

ATHENA CAINS Yes, Sama, that's absolutely right. And let's get into Section 36. So, Section 36 is your basic fitness for duty provision. And it allows for the employer to arrange an assessment with a suitably qualified person, addressing the employee's capability to undertake a rehabilitation program. A suitably qualified person is usually a workplace rehabilitation provider or an independent medical expert, depending on the severity of the injury at stake.

Section 37 is a rehabilitation program provision. It gives employers the power to make rehabilitation programs for employees. A rehabilitation program is a program that is designed to help employees recover and return to health and work following a work-related injury or illness. Sama and I get told a lot about what a rehabilitation program must include. And I guess today, before we go into more technicalities and making decisions, we wanted to bust a few myths. And whilst there may be handbooks around what best practice rehabilitation is and what a rehabilitation program should include, it is only in the SRC act itself. And the SRC Act Guidelines for Rehabilitation Authorities Instrument 2019, made under Section 41 for those interested, mandate what must be in a rehabilitation program.

And the first myth I want to bust here is the return to work hierarchy, which gets thrown around a lot. The return to work hierarchy no longer exists in law. And in my view, it has no place in a rehabilitation program. Agencies did use to have to follow the hierarchy under the 2012 guidelines for rehabilitation authorities. But these guidelines were repealed on the 15th of August 2019. So now, instead of following the return to work hierarchy, all that is required is that the agency takes reasonable steps to obtain or assist the employee in obtaining suitable employment. Suitable employment for a Commonwealth employee is, simply put, employment in the Commonwealth for which the employee is suited. And we no longer have to go through the return to work hierarchy, which can be very stifling to rehabilitation providers, employees, and employers.

SAMA KHAN You say, "All that is required," and, "Simply," like it's not a tricky thing for employees or employees looking to return to work. And what is suitable employment anyway?

ATHENA CAINS Well, I think that we will leave suitable employment today and address that another time, but as to the simplicity of finding suitable employment well, you're spot on, Sama. I know it is not easy, but I think it is far easier to follow these guidelines than it is to try to squish an employee into the return to work hierarchy, which, as I said, is too rigid to be of assistance to agencies in particularly complex matters. For now, it is enough to know that the obligation on employers is contained in Section 40 of the SRC Act, and is limited to taking all reasonable steps to provide the employee with suitable employment or to assist the employee in finding such employment and not the return to work hierarchy. It is the Section 40 obligation and the corresponding duties in the guidelines that will be considered in determining whether a rehabilitation program is reasonable or not.

And I would go so far as to say that a rehabilitation program with the return to work hierarchy as the goal, where the evidence is that this goal is preventing compliance with the rehabilitation program, for example, where an employee has suffered PTSD and simply cannot, and has the medical evidence to support that, return to the original place of work. I think this would likely not be found reasonable. Another thing that I sometimes get told is that the overarching rehabilitation goal cannot change and must always be the return to suitable employment. Although I note here, it is usually described as a return to work hierarchy, but I've busted that myth. So we'll return and stick to suitable employment. And this is not; it's just simply not true. There is no requirement in the legislation or the guidelines that the decision must state a goal. And this goal is always the return to suitable employment.

ATHENA CAINS There is, of course, a requirement for the agency to monitor the rehabilitation program. And that includes the availability of suitable employment for the employee. However, this monitoring does not have to be included in the rehabilitation program. And where a rehabilitation program's focus on suitable employment is causing harm to the employee, it could be unreasonable in all the circumstances. Remember, the rehabilitation program can change and should change as the employee's capability changes. Flexibility may be required to assist the employee in achieving the best outcome for them. So now we've busted some myths. Sama, why don't you take us through the key elements of making defensible decisions under Sections 36 and 37?

SAMA KHAN Well, as you've outlined, Athena, correct decision-making is critical to a defensible rehabilitation program. And this is important because the decision ultimately impacts an employee's health and well-being and because making invalid decisions can have consequences in the administrative appeal's tribunal for the employer. This is because decisions made under Sections 36 and 37 of the SRC Act are reviewable decisions under Section 60 of the SRC Act. This means they are decisions that can be brought before the AAT for review after Comcare has reviewed them. So the decisions made under these sections must be made in accordance with the legislation, the guidelines, and of course, general principles of administrative decision-making such as procedural fairness.

So when the employer or the rehabilitation authority is making a determination under Section 37 of the SRC Act, the formal requirements it needs to have done to ensure that the decision is valid and that the program's provisions are defensible. Firstly, the person making the determination has a delegation to do so, and this delegate has the appropriate skills and capabilities to exercise the functions. Two, that regard has been had to the factors in Section 37-3, commonly referred to as the A to H Requirements when determining whether a program should be implemented. Three, that the employee must be consulted, but their consent or their sign-off is not required. Four, that the determination is in writing. It includes the reasons for the decision and includes details of the review mechanisms available to the employee. And finally, the decision must have the details of the rehabilitation case manager, and the supervisor, and the workplace rehabilitation provider, if that's applicable. And you review dates, and if appropriate, reasonable steps that have been undertaken to obtain or assist the employee in obtaining suitable duties under Section 40.

So the first key issue that a rehabilitation authority must consider under these sections is identifying who the appropriate person is to make the decisions. So that's the person that has the delegation. If someone makes the decisions without the delegation to do so, generally speaking, the decisions will be invalid and unenforceable. The appropriate delegation can be obtained under Section 41-A of the SRC Act. And this section broadly provides that a principal officer of an entity, the Commonwealth authority where a license is not enforced, or a licensee may in writing delegate to an employee all the powers and functions of the rehabilitation authority under part three. That's the rehabilitation part of the SRC Act. As a general rule, Sections 36 and 37 delegations should sit at the rehabilitation case manager level and above in the workplace health and safety team. It would be questionable if, for instance, these powers were delegated broadly outside of the work health safety areas, and delegates exercised the delegation without work health and safety training and expertise. If you have any doubt that you have the appropriate delegation, check your HR delegations.

ATHENA CAINS And if you can't find them, you have my permission to panic. Get straight onto this, so you ensure your HR delegations exist, are accessible, and are up to date.

SAMA KHAN So, you know you have a delegate, and you're ready to decide on the rehabilitation program. What do you do next? Section 37-3 specifically outlines the matters that delegates need to consider in making a determination that an employee should undertake a rehab program. These considerations are called the A to H, which I mentioned earlier, and they must be considered separately.

I think it is worth addressing a Section 36 assessment briefly and what's required with one. So firstly, you don't have to do a Section 36 assessment. Part of the decision-making under Section 36 is deciding, "Do I need one or not to determine an employee's capability to undertake a rehab program?" You don't need to have one for a Section 37 rehab program. The guidelines specifically state that it is not always necessary to make a rehab program under Section 37.

Let's look through the legislation starting at Section 36-1. We can see that a rehabilitation authority may, at any time, arrange for an assessment of an employee's capability of undertaking a rehab program. In making this decision, judgment is clearly required as well as the assessment of risk, taking into account the agency's ultimate responsibilities around suitable employment. The guidelines also allow for a Section 36 assessment not to be undertaken as a precursor to Section 37, where there is sufficient advice available from the employee's treaters, the workplace rehab provider, the rehabilitation case manager or supervisor, or indeed, just the employee. A word of warning, though. It would be prudent to collaborate with a few of these individuals if you intend to make a rehab program without the Section 36 assessment. I'm not sure that one resting solely on the supervisor's opinion, in the absence of any other support, would be upheld.

ATHENA CAINS Or the dangers of the recovered expert. I've actually had a decision-maker say to me in the past that an employee did not have an ongoing entitlement to compensation because that decision-maker had recovered from a similar injury within three months. So, the employee should have recovered in three months as well. And that's one of the most challenging arguments to counter when dealing with rehabilitation and to return to work. But I know I will be preaching to the converted on here, but decisions under Sections 36 and 37 cannot be made in the absence of actual medical evidence. Decisions ought not to be made based on anecdotes or statistics.

SAMA KHAN I completely agree with you there. So what are clear examples of when a rehab assessment would not be required as a precursor to a Section 37 program? A referral for a rehab assessment may often not be necessary if the treating doctor supports an early and safe return to work and provides clear medical guidance. The employee doesn't have an incapacity for work or only has minor restrictions. The rehabilitation case manager has the appropriate experience, skills, and capacity to manage a return to work. There is good communication between all the stakeholders, and you have support from the employee treating medical practitioners or other treatment providers that an assessment is not required. Of course, whether or not you obtain an assessment under Section 36 will turn on the specific facts of the particular employee.

Getting back to the requirements of the Section 37 decision, the guidelines require that a rehabilitation authority consults with an employee concerning the proposed rehabilitation plan. The guidelines also provide that in undertaking the consultation, an employer must consider the employee's injury and circumstances, and two, the employee's communication needs. And what this means, in my view, is that an employer needs to consider how to best consult with an employee. A one size fits all approach, such as emailing the draft to an employee and asking for feedback, might work a lot of the time, but not every time. And an employer needs to consider how best to consult meaningfully with an employee.

I want to reiterate here, though, that a consultation that is not consent. They're not the same thing. So an employee's consent, whilst it's desirable, is actually not required for a valid decision to be made under Sections 36 and 37. Decisions under Section 37 and 36 must be in writing and contain reasons. The reasons must refer to the matters that the delegate had regard to in making the decision. And, written reasons need to address the issues to be determined. The fact is taken into account and then provide a clear decision. We would recommend that there be a template decision developed to ensure the decision-maker addresses all the relevant factors that are required under the provisions. This would also ensure that key things such as the date of review, details of the rehabilitation case manager, review rights, et cetera, are not forgotten in the heat of the moment, sort of decision.

ATHENA CAINS I think that's a really important point, Sama. Administrative decision-making is methodical. So a template can be a really valuable tool for a decision-maker as long as the template is used wisely and not slavishly followed, as there will always be one case that requires a unique approach in order to be defensible. Thank you so much for your time today, Sama, and your information regarding rehabilitation programs.

SAMA KHAN You're so welcome, Athena. It's been a pleasure.

ATHENA CAINS Before we sign off today, we'd encourage you all to take a moment to check your delegation's instrument and ensure that your rehabilitation policies and templates are up to date with the SRC Act, and of course, the 2019 guidelines. In our next SRC report, Sama and I will provide a case review of interesting and relevant rehabilitation cases in our rehabilitation series. Don't forget to check out our other SRC Report podcasts. And if you have any burning questions, please email me, Athena Cains, and we will attempt to answer them at the start of our next episode. Thank you so much for joining us.

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