Claim Workers’ Compensation While Remaining Employed
If you’re injured at work and make a workers’ compensation claim to help you recover, there are protections in place to ensure your job is protected while you’re away.
While the law on workers’ compensation differs between the states and territories of Australia, the restriction on an employer using a worker’s injury or a subsequent compensation claim as a reason to dismiss them from their job is protected in state and territory legislation and the Fair Work Act.
It’s also important to remember an injured worker in Australia is legally entitled to make a workers’ compensation claim. An employer who pressures an employee to not make a claim by offering to pay medical expenses or making other promises is acting unlawfully.
Furthermore, if the injury constitutes a ‘notifiable incident’, the employer is legally required to report it to the state or territory’s relevant work safety authority.
What are examples of the protections?
In NSW, for instance, a worker is protected from being terminated for six months after the date of the injury, and in the meantime, the employer is obligated to do all it can to facilitate the worker’s recovery including contributing to and facilitating a recovery plan, and arranging ‘suitable’ duties if you’re able to return to work.
In Queensland, similar protection exists for 12 months from the date of the injury. A penalty of up to $5,338 applies to employers who sack a worker during this period.
Exceptions to these protections apply if a worker refuses to have a medical evaluation required to determine fitness for employment. or if the employer can produce a valid reason(s) to establish the worker did not meet the legal definition of an injured worker at the time.
In most cases, an employer has a legal obligation to offer an injured worker ‘suitable duties’, determined on what is appropriate in relation to the nature of your injury. In this situation, a worker may be required to accept reduced hours or different duties.
Can you still be dismissed while on workers’ compensation?
Employers can still dismiss a worker while they are away from work claiming worker’s compensation but in general, must follow the National Employment Standards by giving the employee written notice.
An employer can:
- given an employee their minimum notice period running concurrently with their absence on workers’ compensation;
- payout the notice period, or;
- combine the two options.
Employers should discuss any significant changes that will affect the employee’s job in the workplace with the injured worker. Notably, this should occur at the time the decision is made, not when the worker returns from a period recovering on workers’ compensation.
Workers covered by an award, enterprise agreement, other registered agreement, or employment contract should check the document governing their relationship with their employer in case there are different notice of termination entitlements while they are on workers’ compensation.
If a worker cannot return to work after a certain period (12 months in NSW, for example), even to do alternative light duties, then an employer can legally terminate the employee but even in this situation, there are conditions such as another defined, extra period of time within which the worker won’t recover from the injury.
If a worker is terminated while on workers’ compensation, benefits will continue so long as the treating doctor provides certification that the employee is unable to carry out their pre-injury duties.
If an employee’s job is made redundant while on workers’ compensation, again, an employer must provide proper notice and pay out any entitlements, including redundancy pay if it applies.
Is legal advice necessary?
While the job of an employee on workers’ compensation is protected for a period of time after the injury, if you’re terminated or made redundant because the work injury has made you unfit for your position, you still have a right to apply for reinstatement through the state’s relevant industrial relations authority. In most cases, this application must be made within two years of your dismissal.
A worker can also make a work injury damages claim if they lose their job because of the injury but in this case, they need to establish that the work injury was the result of the former employer’s negligence. In some states, they also need to provide their degree of impairment as a result of the injury. The claim will seek a lump sum compensation amount for past and future loss of earnings, compensation for wages and superannuation lost due to the injury.
A further claim may be possible for unfair dismissal under equal opportunity laws.
In any of the situations above, the guidance of expert compensation lawyers is highly advisable. At Gajic Lawyers, our specialty is workers’ compensation claims. We can provide you with more detail and information if you are worried about losing your job after making a workers’ compensation claim, so contact us in major cities in Australia including, Perth, Adelaide, Cabramatta & Parramatta.
