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Call for urgent review of "unfair" workers' compo law

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Lawyers are calling on the State Government to urgently review workers’ compensation law after the Employment Tribunal described the outcome of one of its own rulings as “unfair” and “unfortunate” for an injured worker.

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“I feel completely let down by the system,” said Donna Pennington, who injured her back during the course of her work for a shipping company in 2013.

She told InDaily: “I’ve been without my payment entitlements for almost a year – both my daughter and myself have suffered because of this. I’m a single mum and that hits very hard.”

The Full Bench of the Employment Tribunal ruled in April that Return to Work SA was right to refuse Pennington’s application for renewed workers’ compensation payments after the company she was then working for went into liquidation.

However, it ruled that the interpretation of workplace compensation law “urged upon us by Return to Work SA produces a seemingly unfair outcome in this case”.

“It seems odd that [Pennington’s] successful rehabilitation and the timing of her employer’s demise have brought about such an unfortunate outcome,” the judgement says.

“…If she had resisted attempts to be rehabilitated and was in receipt of weekly payments throughout her incapacity for work, she would have had a potential entitlement to weekly payments for up to another two years.”

Pennington originally applied for and received weekly payments under the under the now-repealed Workers’ Rehabilitation Act after her injury working at Coast to Coast Services.

When she began earning money again working at Zym Export, those payments were cut off because she was then earning more money than her payment.

However, Pennington lost the job when Zym Export went into liquidation – three weeks after the government successfully repealed the Workers’ Rehabilitation Act in favour of the Return to Work Act.

When she applied to have her payments reinstated, Return to Work SA rejected her application.

She challenged the decision at the Employment Tribunal, which upheld the rejection, but conceded that, under the new Act, “if Ms Pennington’s employment had been terminated a month earlier, she would have had a potential entitlement to weekly payments for up to another two years,” the judgement says.

Australian Lawyers Alliance (ALA) SA President Patrick Boylen told InDaily there were “up to 2000 injured workers who may be affected by the this approach taken by Return to Work SA”,

He said the Return to Work Act was was functioning as “a disincentive to return to work”.

“These laws are grossly unfair to injured workers who do the right thing and return to work,” Boylen said.

“The ALA calls on the Minister for Industrial Relations Deputy Premier John Rau to conduct an urgent review of the transitional provisions of the Act that have led to this unfair result and take steps to correct this unfairness.”

Pennington told InDaily she believed “the idea [of the law] is it’s supposed to help you get a job”.

“If I wasn’t working [when the law was changed] I’d get an extra two years’ pay.

“But because I did the right thing and got a job … and through no fault of my own, lost that job, I get [nothing].”

“Mrs Pennington has been let down by a system that she placed her trust in,” Boylen said.

“The safety net provided to her by the previous Act has now been pulled away by the Return to Work Act.”

Pennington said she was in constant pain from her injury, and has been told by doctors she will have to be on medication for the pain “all day, every day, for the rest of my life”.

Minister Rau told InDaily: “Until I am certain that the litigation has ended, I will not be making any comment”.

Pennington said she would appeal the tribunal’s decision if she could, but she did not have the estimated $30,000 it would cost to do so.

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