In many cases, yes, you may be able to claim workers comp after being fired from a role in Queensland.
You do not need to still be employed in the business to bring a workers' compensation claim through WorkCover or a private insurer.
To bring a workers' compensation claim, you need to show that:
Being fired after a work-related injury or illness does not prevent you from making a workers' compensation claim.
But what you can claim for will depend on why you were fired.
If you were fired as a direct result of your injury or illness, and within 12 months of the incident occurring, this is not permitted and there are laws to protect you. You may be able to claim compensation - and have your role reinstated - because of being fired.
If you were fired for reasons unrelated to your injury or illness, however - such as if you were caught stealing from the company, or didn't show up for work because you were on holiday - you would have a difficult time claiming that you were unfairly dismissed.
The law states that you must make yourself "ready, willing, and able" to perform any suitable duties offered by your employer after an accident or injury. If you were legitimately and reasonably fired for reasons completely unrelated to your condition, your employee might be able to argue that you were not "ready, willing, and able" to perform suitable duties.
You may still be able to bring a workers' compensation claim for a workplace injury or illness, but would likely only be able to claim medical expenses - not your lost income.
Important: If you decide to pursue an unfair dismissal claim, time is of the essence. Claims must be commenced within 21 days of being fired. After this period, you may be able to bring a discrimination claim within 12 months of being fired. These possible claims are separate to a WorkCover or private workers' compensation claim.
There are state and federal laws in place to protect injured workers. Employees cannot be terminated from employment as a direct result of a work injury for a period of 12 months after the incident. In addition, these laws are also designed to protect injured workers from unfair treatment as the result or a work injury or lodging a claim, including demotion. If you feel like you have been terminated as a direct result of having an injury or lodging a claim then you should also seek legal advice to see if your employment rights have been breached.
If you have already been terminated by your employer then you can ask to be reinstated if the injury occurred within the past 12 months. You will need to provide a doctor's certificate stating that you are fit to return to work.
If your employer refuses to give your job back then you can go to the Queensland Industrial Commission to order the employer to return you to your old role. The Industrial Commission can order the employer to take you back or agree to terms such as a planned start date.
If you do not agree with the decision of the Queensland Industrial Commission, you can appeal to the Industrial Court of Queensland.
Strict time limits apply - seek legal advice ASAP - If you are looking to start an unfair dismissal claim, make sure to do so within the time limits mentioned above in this article. Call us on 1800 266 801 or start a live chat.
It’s important to get advice for your specific situation. Check if you can make a risk-free compensation claim and get free initial advice from our Principal lawyer, Greg Smith.
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