In Australia workers are protected in the unfortunate case they are injured at work by statutory compensation schemes in all of the nation’s states and territories. These schemes provide financial assistance to injured workers with the aim of supporting their rehabilitation and recovery so they can return to work as soon as possible.

When an employee lodges a workers’ compensation claim, some unscrupulous employers may see it as an opportunity to end the worker’s employment for any numbers of reasons, from a desire to trim the company’s headcount, or because they no longer want the employee to be part of the organisation, or do not believe they will be able to perform their duties to the same level after their injury.

But under Queensland’s Workers' Compensation and Rehabilitation Act 2003 (‘WCRA’), an employee who is injured in the course of their employment is legally protected from being dismissed when they make a workers’ compensation claim. Additionally, an employer is not permitted to pressure an employee not to make a workers’ compensation claim by, for example, meeting their medical expenses or making other guarantees about their employment.

This article takes a closer look at the rights and obligations of employers and employees under the WCRA once the worker files a workers’ compensation claim, including the employee’s right to pursue an unfair dismissal claim under the Fair Work Act if an employer ends their employment while the claim is decided.

An employee’s protection under the workers’ compensation scheme

Under the WCRA, an employee who is unable to perform their usual role (or alternative duties) because of an injury or disease in which their employment was a significant contributing factor must not be dismissed within 12 months of the injury or illness becoming known.

In practice this means an employer is prevented from suspending or demoting an employee, restricting their pay or reducing their hours of work, or denying them an opportunity for promotion while they are on workers’ compensation for an injury sustained at work. To note, a worker may still be made redundant during the period provided the redundancy is not related to the injury and the employer follows all proper procedures (see below re unfair dismissal claim).

The legislation empowers an employee to ask their employer to allow them to return to their former position within 12 months after the injury. To do so, the worker must provide a medical certificate from a doctor confirming their fitness to return to work. An employer who does not allow the worker to return to work may face an appeal to Queensland’s Industrial Commission, who may order the employer facilitate the employee’s return.

Once an injured worker has been absent from the workplace for 12 months, and provided there are no suitable alternative duties available for them, the employee may be legally terminated by the employer so long as it’s demonstrated the work-related injury will prevent them from returning to work for an additional three months.

An unfair dismissal claim

An employer who ends the employment of a worker who has lodged a workers’ compensation claim may also have a claim for unlawful or unfair dismissal under the national Fair Work Act (‘FWA’), or may also claim their rights have been breached under national anti-discrimination legislation.

Under the 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.

In defining unfair dismissal, section 385 of the FWA describes circumstances where a worker’s 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 of the FWA, the criteria considered by the Commission in determining a case of unfair dismissal includes 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 employee can still be made redundant while receiving benefits under a workers’ compensation scheme, provided the reason is unrelated to the injury. An employer must give the employee written notice (the period of which can run at the same time as their absence on workers’ compensation) and pay out all entitlements including redundancy pay.

Worried about your job? Contact our expert compensation team

An employer behaving lawfully and conscientiously will take steps to ensure the health and wellbeing of an employee who sustained a work-related injury so that they can receive workers’ compensation benefits and then return to work whether as soon as possible. To this end, it’s important for an employee who has sustained a work-related injury to maintain open and regular contact with their employer about the injury, including participating in any required rehabilitation or return-to-work programs.

Guidance from experienced workers’ compensation legal professionals such as our team at Lifestyle Injury Lawyers is advisable if you’ve been dismissed while making a workers’ compensation claim to ensure your rights are protected and important time limits are met. We can help you deal with what can be a complex and time-consuming process – contact us today.