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Can my employer fire me if I make a workers’ compensation claim?

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Is your employment able to be terminated during a WorkCover claim?

If you are in receipt of weekly payments from WorkCover, i.e you are engaged in a Workers Compensation claim, the law clearly dictates that you are unable to be dismissed from your employment.

Not only are you unable to have your job discontinued, but your employer still has a legal obligation to offer you suitable duties. What constitutes this will depend on the given nature of your injuries, dictating what ‘duties’ are appropriate and suitable for you during this time.

However, this obligation only applies for up to 52 weeks of a claim. After this, your employer has no legal obligation to offer you suitable work, and at this point they can look at terminating your employment. In order to do so, it must at this time be established that your incapacity for work will continue for at least the next three months.

To terminate your employment after the 52 week obligation period, your employer must show that you are unable to complete your pre-injury role.

Generally speaking, your employer will request a medical report from your treating medical practitioners (i.e your General Practitioner), to assess your capacity to work, to ascertain your capacity for your pre-injury role.

Should your WorkCover claim be rejected, it is still unreasonable grounds for an employer to terminate your employment solely due to lodgment of your claim.

Does a loss of job affect a WorkCover claim?

In large part, if you are terminated from your place of work, this will not have any impact on your claim.

Being successful in a Workers Compensation claim is not dependent on still having the same job or employment.

Should your employment be terminated after the 52-week obligation period, provided you have medical evidence to support your injury and ongoing incapacity, you are still entitled to all benefits under WorkCover, including weekly payments and medical expenses.

Disagreement with the decision of termination

If you find yourself in a position where you consider you have been unjustly treated and wrongfully terminated, there are a few legal avenues open to you.

Most commonly, you can pursue an unfair dismissal claim through the Fair Work Commission. It is important to note that if you think this is the case, there are only 21 days in which you are able to lodge such a claim from the date that your employment is ceased.

Generally, if this was to occur during a Workers Compensation claim, it must be shown that your employer had no valid reason to let you go.

You may also have been unreasonably dismissed if your employer failed to give a fair opportunity to respond to any allegations.