What To Do If You Have Been Fired Because of Your Injury?
There are some unfortunate cases where an injured worker chooses not to seek workers’ compensation out of fear that they might lose their job. In this podcast, Senior Associate Jessica Prasser explores this matter.
Dan: Unfortunately, it’s sometimes the case that an injured worker chooses not to seek workers’ compensation in fear that they may lose their job. That decision, of course, can be catastrophic. Well, to explore the topic, in today’s podcast, I’m talking with Bourke Legal senior associate, Jessica Prasser.
Jess, at the outset, how long is an employer required to keep a person’s job after they suffer an injury? Unfortunately, it’s sometimes the case that an injured worker chooses not to seek workers’ compensation in fear that they may lose their job. That decision, of course, can be catastrophic.
Well, to explore the topic, in today’s podcast, I’m talking with Bourke Legal senior associate, Jessica Prasser. Jess, at the outset, how long is an employer required to keep a person’s job after they suffer an injury?
Jessica: The employer cannot terminate someone’s employment within the first six months of that person becoming unfit for employment. They’re required to keep their job open for that period of time, and the employer can actually be in breach of the act if they do get rid of the job within the first six months, which means that they could be taken to court over that.
After that period of six months, that’s the time when an assessment needs to happen as to whether the injured person can actually return to their pre-injury duties. If they can’t return to their pre-injury duties due to ongoing restrictions and capacity for work, then the employer needs to determine if they can provide suitable duties to that injured worker to take into account the ongoing effects of their injury and the disabilities that they suffer.
However, the employer, it is a defence to the employer for it being found in breach of the act if they can satisfy that at the time that they dismissed the worker, the worker would not actually undergo a medical examination required to determine their fitness for employment. Or if at the time of dismissal, the employer believed on reasonable grounds that the worker was not an injured worker within the meaning of the act.
Dan: So just what happens if a person is let go by their employer after an injury? What’s the insurer required to do to help with this?
Jessica: The injured worker has put in a claim for workers compensation, which is very much recommended as soon as an injury occurs. If the employer does let them go after that six months because, for example, they can’t provide suitable duties, then whilst the insurer pays that person weekly benefits, they also have an obligation to assist with rehabilitation and return to work.
That could involve them setting up the person with a rehab or return to work company, who can then assist them in finding a suitable job in new employment. As part of that process, they usually do a functional and vocational assessment to work out the person’s limitations and their transferable skills to work out the likely new fields of employment they could move into.
Now, after that, this can actually result in a formal work trial, which involves the worker and being put into that new employment for a short period of time of up to six up to twelve weeks, and that’s to provide them with on-the-job training and to see whether that type of employment suits that person. Then after that 12-week period, the new employer can then decide whether to offer that employee full-time employment.
Dan: So, how long does this help from the insurer actually last in, in practice?
Jessica: It lasts as long as the person is on weekly benefits. So, If the insurer cuts off a person’s weekly benefits, then it’s likely that they will cease all assistance with return to work.
This can leave the worker in a really vulnerable position because they’re now left with no support by the insurer in finding a new job, and they still are suffering from this work injury, and that causes them real difficulty with finding a new employer on their own who’s willing to take them on with their ongoing restrictions.
It’s therefore recommended that a person utilise all of the services the insurer is offering when it’s offered in relation to rehabilitation and return to work, as there’s no guarantee that it will continue long term into the future.
Dan: Is there sort of any incentives out there for prospective employers, I suppose, to take on these injured workers?
Jessica: If an employer offers a worker paid employment after the completion of a work trial, they may be eligible for incentives under the Job cover placement program, and that program is designed to offset the cost of engaging a worker with an existing injury.
The program benefits involved for that new employer can include incentive payments of up to $27,400 for up to twelve months, exemption of the workers wages from their workers compensation premium calculation for two years, and protection against the cost of changes to the worker’s existing injury for up to two years.
As you can see, there are incentives for new employees to take on people after a work trial. But obviously these incentives don’t happen if a person is left on their own to try and find a job, which is why it’s so important to try and go through that return to work process through the insurer.
Dan: Jess, what about in circumstances where the injured worker isn’t receiving help from the insurer, where do they go in terms of getting that work assistance?
Jessica: If there are any issues with the all complaints that need to be made in relation to the insurer’s conduct when undertaking this return to work process, we always recommend people lodge those complaints with the solutions group at IRO.
Now, IRO is the Independent Review Office, and they assist injured workers free of charge to deal with any case management issues such as these. An injured worker can contact them on 139-476 and advise them what’s been happening, what their issues are, why the insurer hasn’t responded to them, what they’re waiting on, et cetera.
The solutions group then contacts the insurer asking for an update, what’s happening, and the insurer is actually required to respond to them within two working days. It’s a really great benefit that the government introduced in 2012 for people to have access to this solutions group because they can really help the injured workers get some answers out of the insurer.
Dan: Jess, if an injured worker who has got concerns about perhaps being fired following an injury, can they reach out to you at Bourke Legal?
Jess: Yeah, definitely. They can definitely give us a call and we can guide them into what they need to do. It may very well be that the person actually requires an employment lawyer as well as a worker’s compensation lawyer like myself.
However, making that initial call with us, we can help them figure out who they need to speak to and who needs to deal with what issues.
Dan: Jess, thanks for joining me.
Jessica: Thanks so much.
Thanks for listening. If you have any questions, please do not hesitate to contact Bourke Legal on 1-300-026-875.