One of the most common queries I get asked by injured people in their initial consultations with me is whether they are at risk of getting sacked by their employer if they make a claim for their injuries.
This is particularly so with WorkCover claimants where they have been injured in the course of their employment but interestingly, is also a cause of concern for people injured in ways not connected with their workplace such as motor vehicle accidents or public liability events.
There seems to be a general concern that once an employer is made aware of a person being injured, their employment is at risk, presumably based on some concern that the employer will see them as a risky proposition.
There are some protections in place which may settle some of those concerns.
Person’s injured in the course of their employment
There are particular provisions which apply to person’s injured in the course of their employment in Queensland and whom have lodged a claim with WorkCover Queensland.
Where a worker has suffered a compensable injury under the WorkCover scheme, the Worker’s Compensation and Rehabilitation Act 2003 provides that it is unlawful for an employer to terminate the services of that worker within twelve months of the date of the injury if the predominant reason for termination is that the worker is not fit for employment because of the injury (S232B).
Where a worker is fit to return to duties with in that twelve month period, they have a strong prospect of obtaining an order from the Industrial Relations Commission re-instating their employment (S232D and S232E).
Conversely, where a worker is unfit for their duties of employment for a period greater than twelve months from the date of their injury, the employer is reasonably able to terminate the employment and replace the worker permanently.
Other forms of protection
Aside from within the WorkCover scheme, there are other protections that may assist an injured person from having their employment terminated where they are temporarily unable to perform their duties.
Under the Fair Work Act, it is unlawful for an employer to dismiss an employee if the reason for the dismissal is the temporary illness of the employee.
The Act defines ‘temporary’ as meaning three (3) months or an aggregation of three (3) months absence due to illness or injury over a twelve month period.
Further, it may be unlawful under anti-discrimination legislation for an employer to dismiss an employee solely because of illness or impairment. Of course, a distinction needs to be made of circumstances where an employee is no longer able to fulfil the requirements of their position due to illness or injury as opposed to a situation where an employer discriminates against an employee due to some perceived future risk associated with the fact that the employee has been injured.
The potential remedies available under any Fair Work Act provisions include possible reinstatement to employment and/or damages. The remedy associated with a claim under an anti-discrimination legislation is damages.
Importantly, the existence of these protections does have the affect of safe guarding injured people from early and unreasonable termination of their employment due to injury and gives employers pause for thought before making rash decisions in that regard.
