Published: 27 August 2018
Author: Ashleigh Kemp
WorkCover and employment rights after 52 weeks of payments
A common question that clients receiving weekly payments of compensation for a WorkCover injury ask is “What happens to my employment after I have been on weekly payments for 52 weeks?”.
Under WorkCover legislation, your employer must offer you suitable work for the first 52 weeks after your injury. This may mean reduced hours, working with regular breaks, lifting limits or not doing certain tasks. Many workers get back to their full duties and hours, while some can only ever do partial hours or modified/light duties.
After 52 weeks this protection is no longer available, and an employer no longer has an obligation under WorkCover legislation to provide you with any duties or hours if you cannot return to your full duties and hours.
Whilst some workers find that their employer is supportive and keeps them on modified hours or duties, sadly many workers find that their employer or WorkCover insurer pressure them to return to their full duties and hours before they are ready, under the threat of losing their job at 52 weeks.
It is important to note that even though WorkCover legislation does not force your employer to offer you suitable duties after 52 weeks, Commonwealth Fair Work legislation provides protection for all workers separate and in addition to any protections you may have under WorkCover legislation. This may include unfair dismissal, discrimination or adverse action/general protections claims.
If your employer does withdraw your light, modified or reduced duties at 52 weeks, you are still eligible to receive weekly payments of compensation and reasonable medical and like expenses.
Will I be sacked at 52 weeks? What can I do?
A common misconception is that if a worker has not returned to full pre-injury hours and duties, they can automatically be sacked. Whilst you may not have the WorkCover legislation protection described above after 52 weeks, it would be unlawful for your employer to ‘automatically’ sack you on the basis that you have not returned to your full hours and duties.
It is very important that if your employer tells you that they have terminated your employment (whether verbally or in writing), to get legal advice as soon as possible. There are strict time limits – as short as 21 days – to take some actions under Fair Work legislation.
Whether or not your employer can lawfully terminate you on the basis of not being able to return to your pre-injury hours and duties, is known as the inherent requirements test.
Your employer will generally send you and your treating general practitioner a list of questions relating to your capacity to perform the inherent requirements of your role. Your employer may also send you to an ‘independent’ doctor for an assessment.
If you cannot perform the inherent requirements of your role but could perform the inherent requirements of your role with reasonable adjustments, it is unlawful for your employer to terminate your employment.
To answer this question, we must look at what are “the essential requirements” of your role and whether or not you are able to undertake these requirements. If you are unable to meet those requirements, we consider whether your employer can make “reasonable adjustments”. A number of factors are considered when deciding what is a reasonable adjustment, including the effect of the adjustment on the business, and the size of the employer.
As a general rule, once your employer has your doctor’s responses, you will be invited to a meeting regarding your ability to return to work. You are able to bring a support person or Union representative with you.
Your employer must give you an opportunity to show cause as to why your employment should not be terminated.
Therefore, it is very important to get legal advice as to your rights and entitlements if you think your Employer is taking steps to terminate your employment.