When a worker is medically unable to return to their pre-injury duties, Australian employers are obliged to provide suitable alternative work where reasonably practicable, explore all reasonable adjustments under the Disability Discrimination Act 1992, and document each step before any termination decision can be considered. Dismissal without exhausting these options creates significant exposure under the Fair Work Act 2009 and applicable workers’ compensation legislation.
Why “unable to return” is not the end of the process
A treating practitioner’s certificate stating a worker cannot return to pre-injury duties is a clinical data point — not an endpoint. It describes capacity at a specific moment in a recovery trajectory. It does not determine what happens next from an employment or legal standpoint.
The employer who receives that certificate has a sequence of obligations to work through before they can make any adverse employment decision. Skipping steps — even with genuine goodwill — is where most disputes originate. Workers’ compensation insurers, Fair Work Australia, and the Australian Human Rights Commission have seen the same skipped steps repeatedly: the employer assumes that “cannot return to duties” means “nothing we can do”, and dismisses without considering the alternatives.
The sequence matters. What the employer does in the first 4–6 weeks after receiving the certificate determines whether the eventual outcome is defensible.
What the law requires — jurisdiction by jurisdiction
Workers’ compensation in Australia is a state and territory matter. The obligation to provide suitable work, and how long that obligation lasts, differs significantly across jurisdictions. These are the key parameters for the six main schemes.
| Jurisdiction | Legislation | Suitable work obligation | Obligation period |
|---|---|---|---|
| NSW | Workers Compensation Act 1987 | Suitable duties where reasonably practicable | During incapacity while employed |
| VIC | WIRC Act 2013 | Pre-injury or suitable alternative employment | Up to 52 weeks from return readiness |
| QLD | WC&R Act 2003 | Suitable employment if available | 12 months from incapacity onset |
| WA | Workers' Compensation and Injury Management Act 1981 | Suitable duties — insurer co-ordinates | During defined rehabilitation period |
| SA | Return to Work Act 2014 | Suitable employment — graduated RTW | During the first 2 years post-injury |
| ComCare | Safety, Rehabilitation and Compensation Act 1988 | Suitable employment — mandatory rehabilitation programme | During incapacity — no fixed end date |
Always confirm current obligations with the relevant scheme agent — obligations can change and small employer exemptions apply in some jurisdictions.
The four-step process when pre-injury duties are not achievable
Work through these four steps in sequence. Document each one. The documentation trail is what makes any later employment decision defensible — not the final decision itself.
1. Clarify the restriction
A GP certificate saying "light duties" is not a functional restriction — it is a direction without a measurement. Before designing any suitable duties programme, obtain a capacity certificate that specifies functional limits: maximum weight lifted, hours standing, postural restrictions, cognitive load if relevant. If the treating practitioner cannot provide this, request a functional capacity evaluation (FCE) via the insurer. You cannot design a suitable duties programme from a vague clinical opinion.
2. Map restrictions against the IROJ
Pull the Inherent Requirements of the Job (IROJ) document for the worker's pre-injury role. Map each documented restriction against each inherent requirement. This produces a clear picture of which specific demands the worker currently cannot meet — and which they can. A lumbar restriction of "no lift above 8 kg" does not preclude a maintenance worker from inspection, reporting, or planning tasks. This step often reveals that the worker can perform 60–80% of the role's inherent requirements — which changes the suitable duties conversation significantly.
3. Design and document the suitable duties programme
Build a graduated suitable duties programme from available tasks that sit within the capacity certificate restrictions. The programme must be time-limited (typically 4–12 weeks), have defined review milestones, be signed by both the worker and a workplace representative, and be sent to the treating practitioner for review. Include a graduated capacity timeline — what percentage of the full role demands the programme targets at each review point. Vague or open-ended suitable duties programmes are a common RTW failure mode.
4. Document the reasonable adjustment assessment
Under the Disability Discrimination Act 1992, the employer must assess whether any reasonable adjustment could enable the worker to perform the inherent requirements of their pre-injury role — or any other available role. Reasonable adjustments include modified hours, modified equipment, role redesign, relocated workstation, or support technology. Document each option considered and why it was or was not practicable. This step is not optional even if workers' compensation obligations have been met.
When no suitable role genuinely exists
A small civil construction company with eight employees — all in physically demanding site roles — cannot manufacture a sedentary suitable duties position that does not exist. That is a genuine situation, and the law acknowledges it.
Where an employer has genuinely exhausted suitable duties and reasonable adjustment options and no viable role exists, the insurer should be involved in a vocational rehabilitation pathway. Vocational rehabilitation is funded through the workers’ compensation scheme and can include skills assessment, retraining, job placement support, and in some cases wage supplementation for a lower-paid alternative role while the worker transitions.
The employer’s documentation at this point needs to show: the IROJ analysis, the capacity certificate, the suitable duties assessment, the reasonable adjustment assessment, and the referral to vocational rehabilitation. This is the evidence that makes any subsequent employment decision defensible.
Termination should be the last step of a documented process — not the first response to a capacity certificate. In unfair dismissal and general protections claims arising from injury-related termination, the documentation trail is the primary determinant of outcome.
The legislative framework — three Acts every employer needs to understand
Managing RTW when pre-injury duties are unachievable sits at the intersection of three distinct legislative frameworks. Compliance with one does not discharge obligations under the others.
Work Health and Safety Act 2011 (model WHS Act)
Primary duty of care to protect workers from risk to health and safety, including the risk of re-injury through premature or unsuitable return to work. Deploying a recovering worker in a role whose demands exceed their functional capacity is a reasonably foreseeable risk the employer must manage.
In practice: The suitable duties programme is the WHS control measure. It must be proportionate to the clinical restriction — not just a paperwork exercise.
Disability Discrimination Act 1992 (Cth)
Prohibits discrimination on grounds of disability — which includes temporary physical impairment from injury. Employers must demonstrate that any adverse employment decision is based on the worker's inability to meet the genuine inherent requirements of the role, with or without reasonable adjustment.
In practice: Document the IROJ requirements, the specific restrictions that prevent meeting them, and the adjustment options considered. Decisions based on diagnosis rather than functional incapacity are unlawful.
Fair Work Act 2009 (Cth)
Adverse action protections prohibit taking action against a worker because of a physical or mental disability. Unfair dismissal provisions apply to dismissals that are not a genuine redundancy and not consistent with the Small Business Fair Dismissal Code where applicable. A dismissal motivated by the injury itself — rather than genuine operational necessity — is adverse action.
In practice: Employers must be able to show the decision was made because no suitable role existed after genuine inquiry — not because the worker had an injury.
What good RTW documentation looks like
RTW cases that end in dispute almost always share one characteristic: the employer made reasonable decisions but failed to document them. The decision is not what gets scrutinised — the record of the decision is. These are the documents every RTW case involving capacity limitation should hold.
IROJ document (current)
- ›Signed off by line manager and OH
- ›Demand categories mapped (lift, postural, cognitive)
- ›Date-stamped and version-controlled
Capacity certificates
- ›Treating practitioner certificates at each review
- ›FCE report where obtained
- ›Annotations mapping restrictions to IROJ demands
Suitable duties plan
- ›Graduated demand timeline
- ›Task list with restriction mapping
- ›Worker and employer signatures
- ›Review milestone dates
Reasonable adjustment assessment
- ›Each option considered and documented
- ›Outcome — implemented or not practicable with reason
- ›Decision-maker identified and dated
Frequently asked questions
What are an employer's obligations when a worker cannot return to pre-injury duties?
Under workers' compensation legislation in all Australian states and territories, employers have an obligation to provide suitable duties or alternative employment where it is reasonably practicable. The exact obligation varies by jurisdiction: in New South Wales under the Workers Compensation Act 1987, employers must provide suitable work where available and reasonably practicable; in Victoria under the Workplace Injury Rehabilitation and Compensation Act 2013, there is an obligation to provide pre-injury employment or suitable alternative employment for up to 52 weeks. Regardless of jurisdiction, the obligation to make reasonable adjustment also applies under the Disability Discrimination Act 1992 — an employer cannot simply dismiss a worker because they cannot return to their exact pre-injury role without first demonstrating that no reasonable adjustment was available.
How long does an employer have to hold a position open for an injured worker?
The obligation period varies by jurisdiction. In New South Wales, the employer's obligation to provide suitable work applies during the worker's period of incapacity while the worker remains an employee. In Victoria, the employer must make the worker's pre-injury position or suitable alternative available for up to 52 weeks after the worker notifies their readiness to return. In Queensland under the Workers' Compensation and Rehabilitation Act 2003, the employer must keep a position available for 12 months from the date the worker's incapacity began. Small employers (fewer than 30 employees in some jurisdictions) may face reduced obligations. Always confirm the applicable period under the relevant state or territory scheme.
Can an employer terminate a worker who is unable to return to pre-injury duties?
Termination is a last resort and is only lawful after the employer has exhausted alternative options — including suitable duties, role modification, reasonable adjustment, and alternative roles. Under the Fair Work Act 2009, dismissal of a worker because of a physical or mental disability is adverse action and is prohibited. A dismissal may be lawful where the worker's incapacity is permanent and no reasonable adjustment can make any available role achievable — but the employer must document the steps taken to explore every alternative. Most jurisdiction-specific workers' compensation laws also impose separate anti-termination protections during the employer's obligation period. Dismissal without documenting these steps creates significant legal exposure.
What is a suitable duties programme and how should it be structured?
A suitable duties programme is a documented, time-limited work arrangement that matches a recovering worker's current functional capacity to available tasks within the workplace. It is built from three inputs: the treating practitioner's capacity certificate (specifying restrictions such as no lifting above 5 kg, maximum 4 hours standing per day), the Inherent Requirements of the Job (IROJ) for the worker's pre-injury role (or an alternative role), and the employer's assessment of available tasks. Good suitable duties plans are graduated — they progressively increase demands as functional capacity recovers — and are time-limited with review milestones at 2, 4, and 6 weeks minimum. They should be signed by both the worker and a workplace representative, and reviewed by the treating practitioner or occupational physician at each milestone.
What happens when there is no suitable alternative work available?
Where the employer genuinely cannot identify suitable alternative duties — typically in small workplaces or where the physical demands of all available roles exceed the worker's current capacity — the insurer may fund vocational rehabilitation to explore options outside the current employer. The employer should document its assessment of available duties, confirm this with the insurer's case manager, and co-operate with any vocational assessment process. In this situation, the Disability Discrimination Act 1992 obligation to make reasonable adjustment still requires the employer to consider whether role design, technology, or modified hours could create a viable option before concluding that no suitable role exists.
What is the difference between a medical capacity certificate and a functional capacity evaluation?
A medical capacity certificate (sometimes called a workers' compensation certificate of capacity) is issued by the treating practitioner — usually a GP — based on clinical examination and the worker's reported symptoms. It specifies broad restrictions but is rarely calibrated to the specific demands of the worker's job. A functional capacity evaluation (FCE) is a structured, multi-hour assessment conducted by an occupational therapist or occupational physician that directly measures the worker's physical capacity against the documented demands of their role. FCEs produce quantified outputs — maximum acceptable lift weights, postural tolerance durations, walking endurance — that can be matched against the IROJ. Where a treating practitioner's certificate is vague or conflicts with the worker's observed capacity, an FCE provides the objective data needed to build a defensible suitable duties programme.
Return to Work — Programme Management
OccuSpan's RTW platform — capacity tracking, suitable duties, and case coordination.
Fitness for Work Assessment Guide
When a fitness for work assessment is triggered and what the IROJ-calibrated process covers.
Job Demands Analysis
Building IROJ documents that are defensible in RTW, pre-employment, and discrimination proceedings.
Inherent Requirements of the Job Guide
What the IROJ must contain and how it anchors every RTW and fitness determination.
OccuSpan
RTW case management that documents itself
OccuSpan maps capacity restrictions against IROJ demand profiles, generates suitable duties programmes from available tasks, tracks every review milestone, and maintains the complete documentation trail that makes RTW outcomes defensible.
See the RTW module