If you are injured or become ill at work, you may not be able to keep working. This can have a devastating effect on your life financially and emotionally.
For this reason, every Australian business is required to take out workers compensation insurance to cover them if an employee is harmed while doing their job. The aim is to ensure that employees get the medical treatment and financial support they need to recover. The scheme also facilitates a safe return to work.
Unfortunately, some employers make it difficult for employees to make a claim for compensation. Some threaten to fire workers if they claim, while others offer to bypass the system and pay the employee directly.
Read more about what to do if your employer is pressuring you not to claim workers compensation.
Your rights after a workplace incident
Every worker has the right to work in a safe and healthy workplace. Your employer has a duty of care to ensure your safety.
If you do suffer a workplace injury or illness, you have the legal right to make a claim for workers compensation. Your employer can’t pressure you not to do so, or terminate your employment if you do.
Additionally, your employer can’t tell you which medical professional to see about your injuries. It’s your right to choose which doctor you want to see.
Can your employer provide payments themselves?
It is illegal for an employer to ask you not to make a workers compensation claim, even if they offer to pay your salary or medical expenses directly while you’re unable to do your usual job.
While this might sound like a good idea, we have seen cases of it going wrong. If you accept these payments, you are no longer protected by the WorkCover scheme or able to claim entitlements. Your employer could decide to refuse to make the payments at any time.
Your safest option is to lodge a WorkCover claim to protect your rights while you’re injured.
Be aware that employers don’t actually pay your workers compensation payments out of their own pocket. The payments come from the insurer that your employer has paid their insurance payments to.
And your employer won’t get in any trouble just because you make a claim. Workers compensation is a no-fault scheme, meaning you don’t have to prove your employer was negligent or caused the injury. If the injury occurred in the course of your employment, you will be eligible for compensation.
(Of course, if your injury was caused by your employer’s negligence or a breach of duty, you may be able to make a common law claim to seek additional damages.)
So don’t let your employer use any of these reasons not to help you with your claim.
Can your employer fire you for making a claim?
Your employer can’t threaten to replace you while you’re recovering on workers compensation. In fact, in Australia, there are set time periods where an employer cannot fire an employee. For example, in Queensland, an injured worker who can’t perform in their usual role can’t be fired within 12 months.
The employer also can’t:
- demote or suspend you
- reduce your pay
- reduce your hours of work
- deny you a deserved promotion.
Once you’re ready, you can ask your employer to return you to your old job within 12 months. Your doctor will need to provide a medical certificate confirming your ability to return to work.
Your employer can legally terminate you if you don’t return to work after 12 months or there are no suitable alternative duties you can do instead. But only if injury will stop you from returning to work for another three months.
So you can see that the law protects workers from the threat of being fired while they are recovering on workers compensation.
If your employer won’t assist with Workcover process
Your employer is expected to follow the correct process after you suffer an injury or become ill due to your work.
After the incident, you must complete a claim form and provide it to your employer with your certificate of capacity. They then have 10 calendar days to send this information to the workers compensation insurer.
If the employer doesn’t or won’t do this, you should send the form to the insurer directly.
Your employer’s obligations
Your employer will have several obligations in your workers compensation claim process.
They are required to:
- report the injury and start the claim process
- discuss the treatment of your injury with you
- make necessary workplace changes, where possible, to create a safer work environment for you
- discuss rehabilitation and return-to-work plans with you, including flexible working arrangements
- update the insurer about your recovery and when you can return to work
- maintain workplace rehabilitation policies and procedures.
Returning to work
When it’s time to return to work, you may need your employer’s help to do so safely.
By law, if you claim workers compensation, your employer must take all reasonable steps to help or provide you with rehabilitation. They must consider a range of options, including flexible working arrangements, or give you other work that you’re trained and able to do.
If they genuinely can’t provide suitable alternative duties for you, they must provide the insurer with the reasons why and evidence to support this.
But you should never return to work before you’re ready, as it could increase your recovery time or exacerbate the injury. By law, your employer cant put pressure on you to return too early, especially to the duties you were performing before your accident.
How can Main Lawyers help
It can be intimidating if your employer is questioning your right to lodge a workers compensation claim or threatening to fire you if you do. But, by law, they can’t do this. In fact, they have a duty to forward your claim on for processing.
Our experienced workers compensation lawyer will work on your behalf to get you everything you’re entitled to. If your employer is making it difficult to file a workers compensation claim, contact Main Lawyers for a no-obligation consultation today.
