What happens to your job while you’re on WorkCover?
The question of what happens to your job when you’re on WorkCover is a common one. It is complex as it involves not only WorkCover laws but employment and discrimination laws. There is also a lot of misunderstanding regarding an employer's duty to hold a worker's position open when they are injured or ill.
In this blog, we’ll explain what your legal protections are.
Employment law and WorkCover law
There are different protections under employment law, discrimination law and WorkCover law. In Victoria, we have our own WorkCover legislation but our employment and discrimination law is governed by Commonwealth legislation.
Under employment law, you are entitled to protection from dismissal for a temporary absence or illness, which as a general rule is a three month period, or three months off over a period of 12 months.
Under WorkCover law, there is a 52 week period from when a claim for weekly payments is made where the employer is required to provide “suitable work”. This means that the employer is obliged to the extent that it is reasonable to do so, to provide a worker with modified duties or hours. This means that within reason they have to try and provide modified work and if necessary modified hours for the worker to be able to remain at the workplace.
The suitable work could be quite different from the work you normally do. Also, different employers have different attitudes regarding this period, some are very keen to have a worker back doing any type of work where others are only interested in the worker performing their pre-injury duties.
You should note that this does not mean that the WorkCover law protects your job within the first 52 weeks. An employer could still terminate your employment within that time period but they would be open to the consequences of a potential unfair dismissal claim or discrimination claim.
Nor does this does not mean your employment is automatically at an end after the 52 week obligation period ends. All it means is that the employer is no longer obliged under the WorkCover law to provide you with suitable work. If they were offering you suitable work there is nothing to prevent them to continue to do so after the first 52 weeks.
More often than not however suitable duties are withdrawn by the employer once the 52 week period has finished. Again, that does not mean your employment has been terminated, simply that the employer has withdrawn the modified duties that the worker has been doing. If this occurs then the worker can remain on weekly payments while not working and is still employed by the employer.
What happens in the long term?
In cases of extended incapacity for work, the employer under the Commonwealth discrimination law is required to make reasonable adjustments to allow the worker to do their pre-injury job.
What is and what isn’t a “reasonable” adjustment will vary from case to case. As an example, if the reasonable modifications to the job meant the worker required assistance for ten minutes each workday to perform a certain task, it is likely to be considered to be a reasonable adjustment. If the worker would need assistance for two hours a day, then very likely it would not be considered reasonable.
There is nothing in the WorkCover legislation preventing an employer from terminating a workers employment, but you can’t be victimised because you have a WorkCover claim. As an example, if the employer terminated your job solely because you were on WorkCover, rather than because there were no reasonable adjustments that could be made to allow you to remain at work, you would have a claim under the victimisation provisions.
Review in the event of long term injury or illness
A common method for the employer to follow in cases of long term injury or illness are:
- review the medical material from the treating doctors that has been provided to them
- meet with the worker to discuss any possibility of returning to pre-injury duties
- then, writing to the worker asking them to provide any medical information detailing when they may be able to return to their pre-injury employment
- if the medical information confirms that the worker cannot return to pre-injury work, then either meeting with the worker again or moving directly to the termination of the worker's employment.
If your employment is terminated on this basis, it does not mean that your WorkCover claim is at an end or that you will cease receiving WorkCover benefits. In most cases, your continued employment with the injury employer is irrelevant to whether you are entitled to receive WorkCover benefits.
To work through an example, imagine a worker is off work on WorkCover payments for a period of 18 months. The employer provides suitable work within the first 12 months but at the end of that period withdraws the suitable work. For the next six months, the worker remains on weekly payments but is not actively working for the employer.
At the 18 month mark the employer follows the process outlined above and as the worker cannot provide any information that they will be able to return to their pre-injury duties at a later time, terminates the worker's employment. In the circumstances, the worker will still be entitled to the full range of WorkCover benefits.