Can an employee be terminated while on workers compensation?

It’s a common question – ‘can an employee be terminated while on workers compensation?’

Here’s what the law says:

You are not able to be terminated from your employment in Victoria just because you made a WorkCover claim or because you have an injury.

If an employer does terminate your job when you are on WorkCover (that is, you have an accepted WorkCover claim) there are legal avenues open to you.

These which will be discussed later on.

If you suffer an injury at work and you have an accepted WorkCover claim, while you are on WorkCover the law says that the employer has a legal obligation to offer you suitable duties.

What suitable duties is depends upon what is appropriate given the nature of your injury.

It might mean a reduction in your hours or it could mean restricting some of the jobs that you actually do during your employment.

For example, it might mean a restriction on the amount of lifting that you can do or it might mean that you are not to bend and pick things up from the ground.

What happens after 52 weeks?

Once you hit 52 weeks of WorkCover, the employer no longer has to offer you suitable duties.

It is at this point that the employer can look at terminating your employment.

In order to do so, they need to establish that you are not able to perform the inherent requirements of your pre injury role

Generally what happens is the employer will either request a medical report from you as to your fitness for work, or they will write directly to your doctor (with your consent), or they will arrange for you to be assessed by a doctor.

The employer is required to give consideration of any reasonable adjustment that might be able to be made to accommodate you.

You should be asked to respond to any allegation that you may not be able to fulfil the inherent requirements of your pre injury role before your employment is terminated.

Does termination impact my WorkCover claim?

If you are terminated from your employment, generally speaking there will be no impact on your WorkCover claim.

You’ll still be entitled to the payment of medical and like expenses and weekly payments (if the WorkCover insurer has not previously terminated your entitlement to these benefits).

You’ll also still be entitled to pursue an impairment benefit and if appropriate, a common law claim for damages.

What if I disagree with the decision to terminate me?

There are options open to you if you disagree with your employers decision to terminate your employment.

The most common legal option taken by people that have been dismissed is to pursue an unfair dismissal claim through the Fair Work Commission.

An unfair dismissal claim involves you alleging that the dismissal was harsh, unjust and unreasonable, not consistent with what’s called the small business fair dismissal code (if it is applicable) and not a case of a genuine redundancy.

If you are on WorkCover and have your employment terminated, to succeed in an unfair dismissal claim generally speaking you would need to show that there was no valid reason for terminating your employment.

This would primarily go to the issue of your ability to work not only at the moment, but also into the future.

For example, if you were terminated, you may be able to show that the dismissal was unfair if there was a report from your treating GP that the employer had when they terminated you that suggested in another few weeks you may be able to get back to your full unrestricted pre-injury job.

You may also potentially be unfairly dismissed if the employer did not give you a reasonable opportunity to respond to the allegation that you do not have a capacity and will not have a capacity to do your pre injury role.

In order to lodge an unfair dismissal claim, you need to complete the claim form which can be found on the Fair Work Commission‘s website.

This then gets sent to the Fair Work Commission who will then provide a copy to your ex-employer.

The ex-employer will then provide a written response, putting their position.

The matter will then be set down for a conciliation conference with a conciliator from the Fair Work Commission. This unfair dismissal conference generally occurs via the telephone.

Many unfair dismissal matters resolve at this conciliation.

However those that don’t, can continue on and be set down for a hearing before the Commission.

If you have been dismissed from your job and you think the dismissal was potentially unfair, then keep in mind that you have 21 days from the date the dismissal came into effect in which to lodge an unfair dismissal claim.

Is it a redundancy?

If you are terminated, keep in mind that you are entitled to be paid redundancy pay by your employer if your employment is terminated by the employer because they no longer require the specific job that you were doing to be done by anyone.

It’s important to distinguish a redundancy from a normal termination of employment.

With a normal termination of employment, you are being terminated from the job by the employer.

With a redundancy, the employer is saying that your job is no longer required to be done within the organisation (perhaps it might be absorbed by someone else). If this is the case, then you are entitled to be paid redundancy pay.