Published: 18 September 2018
Author: Alyssa Lewis
Will lodging a WorkCover claim threaten my job?
Sometimes people who are injured do not report their injury to WorkCover for fear that it might jeopardise their employment.
Can you lose your job for having reported a workplace injury?
Legally the answer is "no". No employer has the right to terminate an employee due to injury. If this occurs, you can take action.
Let me explain the context.
Once you have lodged a claim and your claim has been accepted, your employer must offer you suitable work or light duties for the first 52 weeks after your injury was sustained.
If after 52 weeks you are unable to perform your pre-injury duties, your employer no longer has an obligation to offer you alternative duties and unfortunately may terminate your employment. Thankfully, many injured workers are able to return to their pre-injury duties before the 52 weeks expires.
Options if you have been unfairly terminated
However, if you believe that you have been unfairly terminated as a result of your injury, you could have grounds to pursue:
- an unfair dismissal or adverse action discrimination claim under the Fair Work Act 2009 (Cth);
- a discrimination claim under the Disability Discrimination Act 1992 (Cth); or
- a discrimination claim under the Equal Opportunity Act 2010 (Vic).
The main issue in bringing such a claim is whether you, as the worker, were capable of performing the “inherent requirements” or the “genuine and reasonable requirements” of your substantive role. Furthermore, you may argue that reasonable adjustments could have been made to enable you to perform those requirements, which were not carried out.
If you have been unfairly terminated, you may be able to pursue an unfair dismissal claim regarding the fairness of the process that your employer followed in carrying out the dismissal. For example, you may have been unfairly dismissed if your employer did not give you an opportunity to provide medical evidence about your capacity.
Unless there are exceptional circumstances, a worker must commence an unfair dismissal claim under the Fair Work Act 2009 (Cth) within 21 days of the date that their dismissal took effect. Longer timeframes apply in relation to discrimination claims, but it is always advisable to seek legal advice as soon as possible.