Return to Work - the Hard Way
The short version:
My employer terminated my employment as a project manager because I acquired a disability. With mentor support and the Human Rights Commission process I negotiated an acceptable return to work plan.
My Work Pre SCI:
At the time of my Spinal Cord Injury from a staph infection five years ago at age 60 I had been employed since 2003 as a Senior Project Manager with an engineering consultant firm in Melbourne CBD. I had a broad range of experience in transport infrastructure project development, design and construction over 35 years commencing as a Mechanical Engineer in the Victorian Railways in 1976.
My primary responsibility at the time of the SCI was managing the multi-discipline design and construction support services for a major rail infrastructure upgrade project for our government agency client. The design stage was completed and the client was waiting for planning approval for construction to proceed so in this GFC climate I took the opportunity at age 60 to reduce my paid hours to 30hrs per week, a nice transition step to our self funded retirement plan. Unfortunately the SCI changed all those plans very abruptly.
Medical History Timelines:
November 2010: TIA (Transient Ischaemic Attack or minor stroke). Ongoing investigation of possible causes found 8 to 10mm ASD (Atrial Septum Defect).
May 2011: Surgery via femoral artery to implant ASD heart device to plug the hole in the heart.
October 2011: Admission to hospital with life threatening Golden Staph infection crisis including epidural abscess compressing spinal cord T2 – T12 with initial loss of all sensation and function below T10.
Two spinal surgeries to remove epidural abscess and decompress cord.
Ongoing 4hourly intravenous antibiotic treatment over 5 months until removal of infected heart repair device.
November 2011 – February 2012: Full time rehab Caulfield hospital.
February-March 2012: Open heart surgery to remove ASD device and repair.
So after all that you would think that I may have felt a little hard done by but no, I was accepting that life would be a little different and my engineering approach was to set about solving the problems.
Money, Money, Money:
One of the big and immediate problems was financial. My sick leave and long service leave had run out in March 2012 and my wife had to leave work to be my full time carer but we were not entitled to any disability pension because technically I was still employed so we had no income. We accessed a significant part of my superannuation to pay off debts and cover our immediate needs. This killed our plan for a comfortable self funded retirement and I needed to get back to work as soon as possible so I called my employer as soon as I was out of hospital after the open heart surgery in March 2012 (My initial post surgery feeling of being hit by a truck passed in a few days. The surgeon added extra wires to hold my chest together as he recognised I needed my upper body mobility because the legs didn’t work much).
Employer Not Enthusiastic
My sense of urgency to get back to work was not matched by my CEO who took until June to respond to my many calls regarding a return to work plan. He preferred that I not visit the office and he came to my home where he expressed his concern that I could no longer carry out my project manager role. His response was a shock to me. Despite all the nice supportive things said during his couple of hospital visits his disappointing response was formalised in a letter in late July 2012 with an offer of a casual contract in place of my permanent employee status, or in the plain English unsaid version: ‘we don’t want you to cost us any money unless we have chargeable work for your limited capability due to your disability’. No guarantee of hours if any. No ethical return of loyalty for huge unpaid hours to get projects done on time, on budget under pressure. No recognition that I was the reason we had won a multi million-dollar fee service during the GFC when other businesses were struggling to survive. Just a bottom line decision for minimising the business costs.
I was not happy.
My Return to Work Plan:
I wrote a letter in response with a detailed return to work plan that was based on the fact that 90% of my work to date was on a computer and a phone. With modern communication systems this could be done from anywhere and I had regularly successfully worked extra hours from home with a link to the office system. Construction site visits would be limited and supported by junior engineers and technology input. My continence management was still in development and commuting every day was not practical or desirable so my plan allowed for one weekly office attendance from 10am to 4pm and additional hours from home for a total 15 hours to begin with. At that time I would have needed to rely on my wife to drive me to the station and travel by train into the CBD with me and spend the day there (could be an expensive day!). My plan was submitted in late July.
Medical Assessment and Termination of Employment:
Despite my keenness to get back to work I received no response until I received an instruction in August 2012 to attend an independent medical assessment in October. No further advice was received after the assessment until the week before Christmas 2012 when I received a call from the CEO saying that they had decided to terminate my employment due to “unreasonable hardship” – obviously they had researched the legislation. I found the claim that a multinational consulting company with nearly three thousand employees could not support a senior employee in a wheelchair hard to swallow. An offer of casual employment was repeated despite the claimed ‘unreasonable hardship’ of a permanent employee.
Now I was even less happy.
Options and Support:
I was very fortunate in that my Spinal Community Integration Service mentor was very knowledgeable in the area of disability employment dispute resolution and legal options.
I had a choice of several levels of approach. Softly, softly via a conciliation process managed by the Victorian Equal Opportunity and Human Rights Commission under the Equal Opportunity Act 2010. This aims to bring the parties together to seek a mutually agreed outcome that is legally binding. The next level is a Victorian Civil and Administrative Tribunal which is heard before a legally qualified person who makes a determination which becomes a public document - not good for a consultant company whose primary clients are government agencies which must be seen to comply with disability legislation - this includes their consultant service providers. The option to pursue direct legal action under state or even federal legislation is also there but the issue of legal and court costs are a significant risk and my research did not reveal many cases offering encouraging precedents. My mentor knew people in the Human Rights Commission and he had achieved good results in the past so I decided that was the way to go.
Victorian Equal Opportunity And Human Rights Commission:
The Commission’s website is helpful and in February 2013 I prepared and submitted a complaint form which detailed what happened, how it had affected me, and the results I wanted to resolve the dispute. The commission then submitted the complaint to the employer to seek a response, set up and mediate a conciliation meeting of the parties.
My submission sought amongst other things compensation for loss of income to date and for projected loss to retirement age as my opportunities for employment with other consultants was nil if my current employer did not value me enough to return me to work. This could have amounted to several hundreds of thousands of dollars if we progressed to a legal process and were successful. I also included the option of a return to work ‘under a manager who would not treat me differently because I have a disability’.
It took the process a further few months until my employer responded but instead of the formal conciliation response to the Commission they approached me to meet at their offices in July 2013. My mentor was more enthusiastic than I was for the likely outcome of a return to work agreement but I exercised my high level of self control and the meeting went well with my mentor and my wife present and kicking me under the table each time I started to voice my dissatisfaction with the treatment I had received to date (my legs had started to experience limited sensation by then).
Faced with the risk of significant compensation payments my employer finally decided that my Return to Work Plan was acceptable and I started the next week with a newly developed role of Senior Project Advisor as a permanent part time employee with agreed hours to be worked primarily from my ergonomically assessed home office fully furnished and equipped with the same multi screen system as the workplace office.
The major project I was originally running almost two years earlier had been constructed by then so I was free to develop my role in other areas of project and policy development. By the time I resumed my employment I had my car fitted with hand controls to drive myself to the station and therefore commuting to the office weekly didn’t require my wife to accompany me. My intention to retire soon factored higher in my choices in what opportunities I chose to pursue rather than any disability constraints. They didn’t prevent extensive interstate travel (my wife/carer accompanied me at employer expense to cities where we coincidentally had family) and multistate project leadership responsibilities. The rail industry is now highly regulated and to maintain professional credentials and accreditation requires a strong level of enthusiasm I found difficult to sustain and still feel comfortable. My priorities had changed and I was in a position to provide value to the business without the pressure. I managed to maintain a professional relationship with my CEO but I did get great satisfaction when Karma later caught up with him after a failed career move.
I retired at 65 in December 2015 but I have retained a casual contract that currently involves some regular input to a major rail project review and regular lunch catch-ups with colleagues.
Life is good!