The courts have recently commented on whether a person has work capacity, in the context of their language skills.
In WorkCover claims, what do we look at when assessing whether a person has a current work capacity? Clearly, a detailed examination of the person’s injuries and their consequences is required. It is the defendant’s role to identify suitable employment options that are available to the plaintiff in the open labour market, given their education, training, skills and experience.
The current law, as expressed in Barwon Spinners Pty Ltd & Ors v Podolak does not limit the definition of “suitable employment” to simply focus on a person’s physical capacity to undertake employment. More recently, the court in Richter v Driscoll confirmed that a holistic assessment of the plaintiff is required.
Recent cases have drawn the courts attention to the importance of a worker’s English language skills when assessing their ability to perform suitable employment options.
Chinh Vince Nguyen v Toyota Motor Corporation Australia Limited  VCC 1508
Mr Nguyen is a 49 year old male of Vietnamese background. Since arriving in Australia in 1996 Mr Nguyen performed primarily unskilled manual work. Over the course of his employment as a car assembler with Toyota he sustained injuries to both shoulders and his right wrist. He sought leave to commence proceedings for common law damages in respect of his injuries.
It was a range case, and the court commented that the Plaintiff’s credit was not in issue. The evidence before the court described Mr Nguyen as a motivated person willing to re-enter the workforce. In the last five years he had applied for various jobs but was unsuccessful, and had therefore become marginalised from the workforce.
The court examined the consequences of Mr Nguyen’s physical injuries in the context of his loss of earning capacity. To this extent, the defendant relied on various reports identifying a number of employment options available in the open labour market.
The critical issue was whether the defendant had identified “suitable work” for Mr Nguyen.
Mr Nguyen understood English but could not speak it very well. Various medical practitioners and vocational assessors made reference to his limited English language skills. Judge Kings formed the view that Mr Nguyen’s employment capacity was in fact limited because of his injuries and his poor English.
Applying the principles of Richter, Judge Kings found that upon performing a holistic assessment of Mr Nguyen, in particular his limited English language skills, he did not have the appropriate skills to perform “suitable employment”.
Mr Nguyen was granted leave to bring proceedings for both pain and suffering and pecuniary loss damages.
Koste Stankoski v Flickers Australia Pty Ltd  VSC 468
Mr Stankoski is a 54 year old male of Macedonian background. He worked as a machine operator with Flickers Australia, and sustained a workplace injury to his left upper extremity in 2012.
His payments were suspended and the Conciliation Service subsequently referred the question of whether he has a current work capacity to the Medical Panel. The Panel was of the opinion that he had a current work capacity. Mr Stankoski sought judicial review of the Panel’s opinion.
In forming their opinion the Panel discussed suitable employment options with Mr Stankoski. He cited his limited English as a barrier impacting on his ability to find new employment.
Given the capacity to speak English is normally a requirement of any job, Justice Ginnane stated that the language requirements of the jobs identified by the Panel were relevant to determining Mr Stankoski’s work capacity.
Contrary to the principles discussed in Richter, the Panel did not adequately link Mr Stankoski’s work capacity to the jobs in question, given his limited language skills.
The court quashed the Panel’s opinion and remitted the relevant questions to it for rehearing.
Whilst the decisions of Nguyen and Stankoski have not necessarily created new law, the courts have provided helpful direction as to the importance of taking into account a person’s language skills when assessing their ability to perform suitable employment.