If you are receiving WorkCover benefits after a workplace injury, you may be worried about whether your employer can dismiss you while you are away from work or on restricted duties.
In Queensland, injured workers have some important protections. However, being on WorkCover does not always mean your employment is completely protected in every situation.
Is there a 12-month protection period?
Queensland workers’ compensation legislation includes protection for injured workers in certain circumstances.
Generally, an employer must not dismiss a worker within 12 months after the worker sustains a workplace injury only because the worker is not fit for employment in a position because of the injury.
This protection is important, but it is not a complete guarantee that employment can never be terminated during a WorkCover claim.
For example, different issues may arise if the dismissal relates to redundancy, misconduct, performance issues, business closure, or other reasons unrelated to the injury.
What happens if I am dismissed because of my injury?
If a worker is dismissed within the 12-month period because they are not fit for work due to the injury, they may have rights to seek reinstatement.
In Queensland, this can involve applying to the employer to be reinstated after becoming fit for employment again. Time limits and procedural requirements can apply.
Because dismissal issues can involve both workers’ compensation law and employment law, it is important to act quickly if your employment has been terminated.
Can my employer replace me while I am on WorkCover?
An employer may need to make temporary arrangements to cover your role while you are recovering.
However, temporarily covering your duties is different from permanently dismissing you because you are unfit due to a workplace injury.
If your employer tells you that your role has been permanently replaced, made redundant, or terminated while you are on WorkCover, it may be important to clarify the reason for the decision in writing.
What if I can return on suitable duties?
Many injured workers return to work gradually through a suitable duties or rehabilitation plan.
If you have medical certification confirming that you can perform suitable duties, your employer and insurer may need to consider reasonable return to work options.
Disputes can arise where:
- The employer says no suitable duties are available;
- The worker disagrees with the duties offered;
- The worker’s capacity changes over time; or
- Medical restrictions are not properly understood.
Keeping clear medical certificates and written records can be useful if a dispute later arises.
Can my employer obtain a medical assessment before dismissing me?
Yes. Where a worker has been absent from work for an extended period or there are concerns about whether they will be able to safely return to their role, an employer may ask the worker to attend an independent medical assessment or obtain updated medical information.
The purpose of the assessment is usually to help the employer understand:
- Whether the worker is likely to return to their pre-injury duties;
- Whether suitable alternative duties are available;
- Whether any restrictions are likely to be permanent; and
- Whether the employment relationship can continue.
This process is commonly seen where a worker has been unable to return to work for an extended period.
If the medical evidence indicates the worker is unlikely to be able to perform the inherent requirements of their position, the employer may consider terminating the employment on the basis of medical incapacity.
However, the employer should still follow a fair process before making any decision. Depending on the circumstances, this may include obtaining appropriate medical evidence, consulting with the worker, considering any suitable duties or alternative positions, and complying with their obligations under employment and anti-discrimination laws.
Can I be dismissed because I am medically unfit for work?
Being on WorkCover does not permanently prevent an employer from ending employment where a worker is no longer able to perform the inherent requirements of their position.
However, Queensland workers’ compensation legislation provides important protections, including the 12-month protection against dismissal solely because a worker is not fit for employment due to their workplace injury.
Even after that period has passed, whether an employer can lawfully terminate employment will depend on the individual circumstances. This may include the available medical evidence, whether suitable duties exist, the nature of the role, and the employer’s obligations under workers’ compensation, employment and anti-discrimination laws.
What if I am dismissed after 12 months?
The 12-month workers’ compensation protection does not necessarily prevent dismissal after that period.
However, other legal protections may still be relevant, depending on the circumstances. These may include unfair dismissal, general protections, discrimination, disability discrimination, contract rights or other employment law issues.
The correct pathway depends on why the dismissal occurred, the worker’s employment status, and the timing of the dismissal.
What should I do if I am worried about dismissal?
If you are concerned about your job while on WorkCover, it may assist to:
- Keep copies of medical certificates and work capacity certificates;
- Ask for important decisions in writing;
- Keep records of discussions with your employer;
- Clarify whether suitable duties are available;
- Avoid resigning without understanding the consequences; and
- Get advice promptly if you are dismissed or pressured to resign.
Generally, an employer should not dismiss a worker within 12 months of a workplace injury only because the worker is not fit for employment because of that injury.
No. The 12-month protection is important, but it is not an indefinite guarantee of employment.
Possibly, if the redundancy is genuine and not because of the workplace injury. Redundancy while on WorkCover can be complicated and should be considered carefully.
This can become a return to work issue. It may depend on your medical restrictions, the duties available, and the employer’s circumstances. This is something that should be discussed with your workers’ compensation case manager.
Resigning can affect your employment rights and may complicate your WorkCover position. It is generally worth getting advice before resigning.
The information on this page is general in nature and does not constitute legal advice.