WorkCover and unfair dismissal

WorkCover unfair dismissal graphic

If you have a work related injury (or condition or illness), generally speaking, you are not able to be terminated from work because of that injury.

If you are terminated because of the injury, in some cases you may be able to pursue an unfair dismissal application.

It’s important to keep in mind however that there are circumstances in which an employer can terminate an employee who is on WorkCover.

This article will explain WorkCover unfair dismissal’s further.

What is an unfair dismissal?

Anyone that is terminated from their employment, regardless as to whether they are on WorkCover or not, can lodge and pursue an unfair dismissal application if they believe the termination was harsh, and just unreasonable is able to pursue an unfair dismissal claim.

This is a claim via the Fair Work Commission.

What is the unfair dismissal process?

In order to lodge an unfair dismissal application, you need to complete the relevant unfair dismissal application form.

The application form can be found on the Fair Work Commission’s website.

The application needs to be lodged within 21 days from the date the dismissal came into effect.

This is important.

If you lodge too early, i.e. before the dismissal has come into effect, the fair work commission will likely reject your application and you’ll need to re-lodge again.

Also, and more importantly, if you do not lodge your application within the 21 days your application will be considered out of time.

If you do lodge outside the 21 days, you’ll need to have a hearing with the Fair Work Commission and provide good reasons as to why the application was lodged outside the 21 days.

After lodgement

Once the application form has been properly completed, you will then need to send it to the Fair Work Commission.

The easiest way to do this is via email.

You will need to pay a fee to the Fair Work Commission.

They will then contact you and schedule a conference.

This is called a conciliation (not to be confused with WorkCover conciliations).

Unfair dismissal conciliation‘s tend to occur over the telephone.

You’ll find that the conciliation will be listed within a few weeks after you lodge the application in most cases.

What happens at a Fair Work Conciliation?

The fair work conciliation involves you and your representative if you choose to have one, the employer and their representative if they choose to have one and a conciliator from the Fair Work Commission.

Typically a conciliation will commence with the conciliator outlining their role and giving you a general overview of the process.

It will then be up to you or your representative to outline your position and to explain the reasons as to why you believe the dismissal is unfair.

The employer or their representative will then be able to put their position and explain why they believe the dismissal was not unfair.

After this has been done and after perhaps some brief discussions, the parties will break into private discussions.

The conciliator will then discuss the relevant issues with both parties privately.

Offers may then be relayed between the parties by the conciliator and a period of negotiation may follow.

If an agreement is reached and the matter settles, the parties will then need to sign a document confirming the settlement.

If the matter does not resolve, then you have the choice of negotiating further after the conciliation, or not proceeding any further, or pushing on to a formal hearing.

When will a dismissal be considered unfair for a person on WorkCover?

As mentioned above, an employer can terminate an employee who is on WorkCover in certain circumstances.

You should read this article for further information.

if a person has been on WorkCover and on modified duties or off work completely for 52 weeks or more, and if, based on medical opinion, they’re not likely to be able to return to their pre injury role, then an employer is able to terminate an employee.

Read more about that here.

Before terminating however, an employer should obtain medical material that addresses your work capacity both now and into the future and confirms that you will likely not be able to return to your pre injury role.

If this is not done and your employment is terminated, then the dismissal may be considered unfair.

Consideration also should be given by your employer as to whether your injury is likely to change in the near future.

If for example you are going to have surgery in the next month or so which may significantly improve your injury, and your employment is terminated, this may be considered unfair.

What remedies are available via an unfair dismissal?

If you’ve been terminated while on WorkCover and you wish to pursue an unfair dismissal claim it’s important to know what a claim can do for you.

The maximum amount of compensation you can claim via an unfair dismissal claim is six months wages.

There is no scope to claim any more than this (in terms of financial compensation).

You can also ask for reinstatement of your job. But this is very difficult to obtain via the conciliation process as there has usually been a breakdown in the employer/employee relationship.

You can also request a statement of service which is a document that outlines the period of employment and the nature of employment and can be useful when looking for a new job.

Finally, you can request that a specific person be the contact point for any inquiries that are made to your previous employer from potential employers.

One issue with the unfair dismissal process

There is an issue that’s worth mentioning in relation to the unfair dismissal process, up to and including the conciliation process.

The conciliator doesn’t have the ability to make the parties do something that they don’t want to do.

So you could, for example, have a strong position in terms of your dismissal being unfair. However, your employer can say that they’re not going to offer anything and in some cases there isn’t much you can do about that at the conciliation stage.

You’ll then need to decide whether you want to continue pursuing the matter, which can be costly and time consuming.

What impact will termination have on my WorkCover entitlements?

This has been covered in detail and you should read this article.

Is an unfair dismissal application the correct choice?

If you have been terminated while on WorkCover, in most cases if a person was to pursue any application it will be an unfair dismissal application.

However it is not the only option.

Another option, being another Fair Work Commission application, is called a general protections application.

It is beyond the scope of this article to discuss this application. However, you should certainly read about it via the Fair Work Commission’s website.

It’s important to keep in mind that person is only able to pursue either an unfair dismissal application or a general protections application. You cannot pursue both.

In like an unfair dismissal application a general protections application must be lodged within 21 days of the date the dismissal came into effect.

Another option is to pursue an equal opportunity claim via the Equal Opportunity Commission.

Conclusion

If you are on WorkCover, and your employment has been terminated, you may be able to pursue unfair dismissal application, a general protections application or an equal opportunity claim.

Keep in mind however that there are circumstances in which an employee who is on WorkCover is able to be terminated.

 

Please keep in mind that the information contained on this page should not be considered legal advice and no content on this site should replace the need to obtain advice tailored to the specific facts of your case. The facts of a case can significantly alter the advice that can provided. This site only provides general advice. Read more here.

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To contact Michael or Peter call 1800 746 442 or email [email protected]

Written by the Work Injury Site team