Every employee is entitled to the protection of a WorkCover claim. This includes ordinary employees, contractors, couriers and volunteers.
It is not uncommon for an employer to try and dissuade an employee from making a WorkCover claim. This is because the making of a WorkCover claim will increase the insurance premiums paid by the employer to their WorkCover insurer. When a WorkCover claim is made it operates similar to comprehensive car insurance in that the employer pays an excess to its insurer (the first 10 days of weekly payments and the first $700 of medical and like expenses) and after that all benefits are paid to the employee by the WorkCover insurer. WorkCover is there for the benefit of employees; if an employee is injured in the course their employment then it is very difficult for an employer to lawfully deny a WorkCover claim.
An employer cannot terminate an employee's employment because of the making of a WorkCover claim. This is specifically stated at law. If an employer terminates a workers employment because of the making of a WorkCover claim there are various legal avenues which can be pursued.
It is important to know that the successful making of a WorkCover claim is not dependent on still being employed by the employer where the injury was sustained. In addition, a claim can be made for payment of compensation for the fact of termination of employment. Compensation and/or reinstatement of employment can be sought through the making of a general protections claim or an unfair dismissal claim. These claims have a strict time limit and must be pursued within 21 days of the termination of employment. If an employee wants to pursue compensation outside of this time period then a discrimination claim can be pursued. A discrimination claim must be made within 1 year of the termination. All of these claims address the injustice of the termination and may result in reinstatement of employment and/or payment of compensation. These claims are separate and distinct from a WorkCover claim.
The only legal basis on which an employer can terminate an employee's employment when on WorkCover is when after 12 months of having been injured, the employer no longer has any suitable duties for the employee. It must at this time be established that the employee's incapacity for ordinary duties is likely to last for at least the next three months. The employer has a right at law to have an employee medically examined for this purpose but it is not necessary. If an employee is asked to attend a medical examination, the employee is entitled to see a copy of the resultant medical report. If employment is terminated in this scenario, the employee remains entitled to all of their WorkCover benefits and will continue to receive weekly payments of compensation up until at least the 2.5 year anniversary of the injury date.
If you or a family member has suffered a work-related injury and been terminated by an employer, you need expert advice about your rights to compensation. Redlich's Work Injury Lawyers can help, call us on (03) 9321 9988 for free advice.
