WorkCover and employer discrimination

Monday 19 June 2017
Catherine Sim

As we celebrate Refugee Week, we recognise that people new to Australia may be unfamiliar with the laws and protections afforded to workers who have been exposed to discrimination.

The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) deals with discrimination in the context of a workplace injury.  In considering current and prospective employers, the Act defines ‘discriminatory conduct’ as:

  • current employer: actions which dismiss or alter a worker’s position to the worker’s detriment, or threats to do so, and receiving less favourable treatment in relation to promotion or re-employment for a prohibited reason;
  • prospective employer: refusing to offer employment or treating an application for employment less favourably due to a prohibited reason.

According to the Act, it is an offence for an employer or prospective employer to discriminate for a ‘prohibited reason’. Additionally, a prohibited reason must be the main reason for the discriminatory conduct.

In reference to an injured worker, a prohibited reason includes discriminating against a person because they advised an employer of an injury and pursued a claim of compensation. A prospective employer also cannot discriminate on the basis that you have previously had a WorkCover claim.

The Act further states that if an employer or prospective employer is found guilty of discriminatory conduct for a prohibited reason, the court can impose a penalty, and also:

  1. Order damages for causing hurt and humiliation
  2. Order the employer or prospective employer to pay wages of an amount exceeding no more than 12 months salary of the injured person
  3. Order that the worker be employed or re-employed

If no prosecution has been brought within 6 months of the discriminatory conduct, an injured worker can request that the Victorian WorkCover Authority investigate whether a prosecution is appropriate for discriminatory behaviour. This request must be made in writing to the Victorian WorkCover Authority.

An injured worker who believes they have been discriminated against can apply, within 12 months of the discriminatory actions, for an order from the Industrial Division of the Magistrates Court. The orders available are the same as those listed above in (i.) to (iii.).

Many workers are concerned about the impact that a WorkCover claim can have on their future employment prospects not only with their current employers, but also future employers. If you are concerned that you have been discriminated against as a result of your WorkCover claim, do not hesitate to contact our Adviceline on (03) 9321 9988 for a no-obligation conversation.

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