Ibrahim v Department for Education [2021] SAET 15

When is it unreasonable for a section 18 request to be refused? Where the refusal is not unreasonable, on what ground will the Tribunal exercise its adjudicative function to order otherwise?

These two questions were considered by the South Australian Employment Tribunal in this matter after the worker sought suitable employment under section 18 of the Return to Work Act 2014 (SA). The worker had an accepted claim arising from psychological injury sustained during his employment as a high school teacher, and requested that the Department of Education provide him with 0.4 full time working hours, either comprising administration duties and/or non-school setting teaching duties.

In considering the orders sought by the Applicant, the Tribunal turned its mind to the range of suitable employment sought, which it considered was ‘very narrow’ and not as a result of incapacity but as a result of the Applicant’s ‘personal preference’.

The Tribunal formed the view that the prospects of a return to work in this case were very small, noting that the Applicant was not motivated to return to work (as noted in medical evidence) and that, while the worker was able to perform a wide range of duties and work for greater than a 0.4 FTE workload, he only sought a small range of duties and working hours.

Consequently, the Tribunal determined that it was appropriate to decline to order that suitable employment be provided.

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