Workers’ compensation schemes in all of Australia’s states and territories provide financial assistance to those injured at work to help them rehabilitate, recover and return to their jobs as soon as possible.
Under the state/territory schemes and Australia’s Fair Work Act, most employees who are injured in the course of their employment are legally protected from being dismissed during the process of making a workers’ compensation claim. It is also unlawful for an employer to pressure an employee not to make a workers’ compensation claim, by offering to pay for their medical expenses or through other promises about their work responsibilities, for example.
We’ll look in this post at the rights and obligations of both workers and employers when it comes to maintaining an employee’s job during a workers’ compensation claim, including a person’s right to pursue an unfair dismissal claim if they lose their job in this period.
A worker’s legal entitlements under the workers’ compensation scheme and the Fair Work Act
A work-related injury can make an employee vulnerable to an unscrupulous employer who dismisses them on the basis they can no longer perform their assigned duties, or perform it to the same standard as pre-injury.
But under workers’ compensation schemes in Australia’s states and territories, time periods apply during which an employer must not terminate an employee. In Queensland, under the Workers’ Compensation and Rehabilitation Act 2003 (the WCRA), a worker who can’t perform in their usual role due to a work-related injury or disease cannot be dismissed within 12 months of the injury or illness becoming known. This law is aimed at preventing employers from also taking action such as demoting or suspending an injured worker, restricting their pay or reducing their hours of work, or denying them an opportunity for promotion.
An employee can then ask their employer to return them to their old job within 12 months after the injury by providing a medical certificate from a doctor confirming their fitness to return to work. An employer can be fined for ignoring these provisions of the WCRA.
If an injured worker does not return to work after 12 months and there are no suitable alternative duties available for them, the employee can be legally terminated – provided that it’s confirmed the work-related injury will prevent them from returning to work for another three months.
Additionally, under the Fair Work Act 2009 (Cth) (‘FWA’) an employer is not permitted to dismiss an employee because the employee is temporarily absent from work due to illness or injury of a ‘prescribed kind’. A prescribed kind of illness or injury exists once the worker provides a medical certificate or a statutory declaration about the illness or injury within 24 hours of the start of the absence period. ‘Temporary absence’ has been defined as a three-month period – either consecutively or cumulative absences totalling three months over a 12-month period.
The option of unfair dismissal if terminated while on workers’ compensation
Apart from the protection afforded workers under the WCRA, under the FWA an employer who dismisses an employee because they are temporarily absent from work due to an illness or injury opens the possibility the injured employee can pursue an unfair dismissal claim on the basis of section 385 of the Act that the termination:
- was harsh, unjust or unreasonable;
- was not consistent with the Small Business Fair Dismissal Code;
- or, was not a case of genuine redundancy.
In section 387, the criteria considered by the Fair Work Commission in determining an unfair dismissal application are set out, with factors including whether there was a valid reason for the dismissal related to the person’s capacity or conduct; whether the person was notified of that reason; and whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.
An injured worker can still be made redundant while on workers’ compensation if the reason is unrelated to the injury, but the employer must comply with the appropriate legislation, give the employee written notice (which can run at the same time as their absence on workers’ compensation) and pay out all entitlements including redundancy pay.
Employers’ obligations regarding workers’ compensation
Apart from not dismissing an employee within 12 months of the injury, employers have a number of key obligations when it comes to an employee’s workers’ compensation claim including:
- reporting the injury and beginning the claim process;
- engaging the injured worker to discuss treatment of the injury, possible workplace changes to provide a safer work environment, rehabilitation and return-to-work plans, including flexible working arrangements to assist with recovery;
- keeping the insurer informed of the worker’s progress in recovering to be able to return to work;
- maintaining effective workplace rehabilitation policies and procedures.
A conscientious employer will monitor the health and well-being of an employee who sustained a work-related injury to hasten their return to work whether or not they received workers’ compensation benefits for lost wages and medical/rehab costs.
WorkCover Queensland recently highlighted the case of an employee, Giada, who was diagnosed with epicondylitis, a repetitive strain injury, which prevented her from working in her job as a manager and gelato-maker at a Gelateria. After surgery, she was referred to a rehabilitation specialist by the work authority to help her return to work. Her boss, Matteo, provided lighter, alternative duties to help get her back in the workplace faster.
What an employee should do while on workers’ compensation
The most important thing a person with a work-related injury can do is maintain open contact with their employer about the injury, including their medical treatment and their progress to recovery. This includes early reporting of the injury after the incident or when they become aware of it and being transparent about any pre-existing injuries. Employees should then concentrate on medical treatment, including discussing return-to-work plans with their employer (lighter duties, etc). It’s advisable for an injured employee to keep a journal or record of how their injury affects their daily life, as well as all records associated with the injury (travel expenses, medical receipts, etc).
Finally, it’s important to act quickly and correctly when filing a workers’ compensation claim. Time limits apply and you could miss out on available statutory benefits if you wait too long after the injury to make a claim. The guidance of experienced compensation legal professionals can remove the stress and worry of making a claim. At GC Law, workers’ compensation is our specialty. We will compassionately discuss your injury as soon as possible after it occurs and provide clear, simple advice on the next steps. Contact us today.
