What to Do If Your Employer Fails to Provide Suitable Duties or a Return-to-Work Plan

If your employer refuses or fails to provide suitable duties or a return-to-work plan after your workplace injury, they may be breaching their legal obligations under Queensland law.

Why this matters:

• It is frustrating to deal with.
• It can delay or harm your recovery.
• It can affect your income.
• It can impact your future employment.

Employer obligations are clearly defined under the Workers' Compensation and Rehabilitation Act 2003 (Qld). When employers fail to meet these, there are ways to protect yourself and hold them accountable.

What This Guide Covers

• Your employer’s legal obligations during your return to work
• What counts as suitable duties under WorkCover Queensland
• Practical steps to take when your employer is not cooperating
• How to escalate your concerns through WorkCover Queensland 

Understanding Your Employer's Legal Obligations

What must my employer do when I'm ready to return to work after being injured?

Your employer has specific legal duties under Queensland law to support your recovery and return to work. They must take all reasonable steps to assist in your rehabilitation. 

This includes:

• Working with you, your treating doctor, and WorkCover to create a return to work plan.
• Identifying suitable duties that align with your current medical capacity.
• Providing safe, appropriate tasks that support your recovery.
• Adjusting work arrangements where needed to match your medical restrictions.

Real-world examples of employer obligations:

• Consultation: Your employer must meet with you and review your medical certificates to understand your restrictions. They cannot simply decide you're ‘not fit’ without medical evidence.
• Identify possible duties: They must search for tasks within your capacity, including modified versions of your usual role or alternative positions within the business that pay a similar amount.
• Documentation: If your employer genuinely cannot provide suitable duties, they must provide written notice to WorkCover with specific reasons and supporting evidence explaining why no suitable work exists.

What are ‘suitable duties’ under Queensland law?

Suitable duties are defined under Section 42 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) as work that is:

1. Appropriate for your injury or condition.
2. Within your certified medical capacity, as stated by your doctor.
3. Paid at least 85% of your pre-injury earnings.
4. Safe and supportive without putting you at further risk of harm or reinjury. 

Suitable duties might include:

• Reduced hours: Working 4 hours per day instead of 8 during your recovery, with duties that respect your physical limitations.
• Modified tasks: A warehouse worker with a back injury working at a computer instead of lifting heavy stock.
• Alternative position: A nurse with a shoulder injury temporarily working in patient administration to lessen the strain.

What is NOT suitable:

• Underpaid work: Tasks paying significantly less than 85% of your pre-injury earnings.
• Working beyond restrictions: A retail worker with medical restrictions against prolonged standing being required to work full shifts on the shop floor.
• Unsafe conditions: Any work that your treating doctor has specifically identified as inappropriate for your injury or that could worsen your condition.

Your Rights and Your Obligations

What you're entitled to:

• Suitable work opportunities: Your employer must actively identify and offer you suitable duties that match your medical capacity. This is non-negotiable.
• Income protection during disputes: If your employer fails to provide suitable duties, you continue receiving WorkCover weekly compensation until the dispute is resolved or your capacity changes.
• Position security: Your employer must hold your position open for at least 6 months from when you became unable to perform your usual duties. They cannot dismiss you solely due to your incapacity within 12 months of becoming injured.
• Rehabilitation support: Access to rehabilitation services, including physiotherapy, occupational therapy, and vocational assessments arranged through WorkCover at no cost to you.
• Safe work environment: Protection under the Work Health and Safety Act 2011 (Qld), ensuring you are not exposed to further risk during your return to work.

What you must do:

1. Provide medical certificates: Supply current medical certificates to both your employer and WorkCover within 2 business days of each medical appointment, clearly stating your work capacity and restrictions.
2. Participate in good faith: Attend scheduled return-to-work meetings, respond to reasonable employer requests, and genuinely attempt suitable duties when offered.
3. Lodge your WorkCover claim promptly: You should lodge your claim within 20 business days of first seeing a doctor for your injury. You can still lodge a claim up to 6 months later, but WorkCover will only pay for the period covering the 20 business days immediately before the day you submitted your application.

• Report non-compliance quickly: Contact your WorkCover case manager within 7 days if your employer refuses to cooperate with the return-to-work process.

Common Scenarios and Questions

What can I do if my employer says there are no suitable duties available?

The short answer: Your employer cannot simply claim there’s ‘no suitable work’ without providing detailed evidence to WorkCover.

What to do:

• Request a written explanation: Ask your employer to provide in writing exactly why no suitable duties are available, including what positions they considered and why each was unsuitable.
• Contact WorkCover immediately: Report this to your case manager by calling 1300 362 128. WorkCover can arrange a workplace assessment to verify your employer’s claim.
• Gather evidence: Document your workplace size, different roles that exist, and any positions that appear to match your restrictions. Photos of your workplace showing various work areas can be helpful.
• Request alternative solutions: Ask about duties at other company locations, working-from-home arrangements, or job-sharing possibilities.

Important note: Employers who claim they are unable to provide suitable duties without providing proper evidence to WorkCover face penalties and may be required to repay all compensation WorkCover has paid during the period of non-compliance.

What are my rights if my employer pressures me to do tasks outside my medical restrictions?

The short answer: Pressuring you to perform work beyond your certified medical restrictions breaches both workers' compensation laws and workplace health and safety legislation.

What to do:

• Do not perform unsafe work: You have a legal right to refuse work that you believe is unsafe, given your injury. Politely but firmly decline tasks that exceed your restrictions.
• Document every incident: Create dated written records immediately after each occasion you're asked to exceed restrictions, noting who made the request, exactly what was asked of you, and if witnesses were present.
• Provide medical evidence: Give your employer and supervisor a copy of your current medical certificate highlighting the specific restrictions. Ask them to confirm in writing that they've received and understood these limitations.
• Report to WorkCover immediately: This is a serious compliance breach. Contact your case manager and file a formal complaint outlining the pressure you're experiencing.

Important note: If you're injured further because your employer pressured you beyond your restrictions, you may have grounds for a separate common law claim beyond your WorkCover claim. This can include damages for pain and suffering.

Is my employer allowed to pay me less when offering suitable duties after a work injury?

The short answer: Generally, no. Suitable duties must pay at least 85% of your pre-injury average weekly earnings unless specific circumstances justify lower pay, which must be documented and approved by WorkCover.

What to do:

• Calculate your entitlement: Work out 85% of your pre-injury average weekly earnings using your pay records from the 12 months before the injury. This, in the vast majority of cases, is your minimum entitlement for suitable duties.
• Request a written explanation: Ask your employer to explain in writing why the offered position pays less than 85% and what justifies this reduction.
• Check wage top-up eligibility: Contact WorkCover to ask if they will supplement the difference between what the suitable duties pay and your entitlement. WorkCover may provide wage top-ups in certain circumstances.
• Consider the role's suitability: If the lower-paid role also doesn't match your skills, experience, or medical capacity, it may not be genuinely ‘suitable’ under the legal definition.

Important note: Accepting work that pays less than 85% without challenging it may set a precedent. Always discuss wage concerns with your WorkCover case manager before accepting reduced pay arrangements.

Can my employer force me to see their chosen doctor instead of my treating doctor?

The short answer: Your employer can request an independent medical examination, but your treating doctor's opinion about your work capacity remains the primary medical evidence for determining your workplace duties.

What to do:

• Understand your obligations: You must attend independent medical examinations that your employer or WorkCover insurer has requested. Failure to attend could affect your entitlement to compensation.
• Your doctor remains the go-to source of information: The independent examination is for additional information only. Your treating doctor's work capacity certificate is still the foundation of your return-to-work plan.
• Request examination details: Ask for written notice of the appointment, including the doctor's name, their specialty, the specific purpose of the examination, and who is paying for it.
• Take someone to support you: You're entitled to have someone accompany you to the examination.

Important note: If the independent doctor's opinion differs significantly from your treating doctor's assessment, WorkCover may need to resolve this through a medical panel or referee before finalising your return-to-work plan.

What happens if I try the suitable duties but find I cannot manage them?

The short answer: Suitable duty plans should be living documents that are regularly reviewed and adjusted. If duties prove unsuitable, the plan must be modified.

What to do:

• Report difficulties immediately: Tell your supervisor and WorkCover case manager as soon as you realise the duties are causing problems. Don't wait until you're significantly struggling or risking being injured again.
• See your doctor: Obtain an updated medical certificate that reflects your current capacity. Explain specifically what aspects of the work are problematic and how they're affecting your injury.
• Request a review of the plan: Ask for a formal review meeting with your employer and WorkCover to discuss any changes. The plan should include scheduled check-ins (weekly or fortnightly initially) to monitor how you're managing.
• Document your experience: Keep detailed notes about which tasks cause difficulty, when symptoms worsen, and what modifications might help. 

Important note: Struggling in silence helps no one. Identifying problems early on allows for quick adjustments and prevents setbacks in your recovery that could prolong your time off work.

What are my options if my return-to-work environment is hostile or uncomfortable?

The short answer: Creating a hostile environment for injured workers may constitute discrimination and breach your employer's rehabilitation obligations, giving you grounds for complaints and potential legal action.

What to do:

• Identify specific behaviours: Document exactly what's happening (excluding you from meetings, giving you demeaning tasks unrelated to your skills, colleagues making negative comments about your injury, being isolated physically from your team).
• Report internally first: If your workplace has an HR team or a complaints procedure, use it to formally report the hostile treatment. Keep copies of your complaint and the responses you receive.
• File a workplace complaint: Contact WorkCover to report that the hostile environment is affecting your rehabilitation and may constitute discrimination under the Workers' Compensation and Rehabilitation Act 2003 (Qld).
• Consider an anti-discrimination complaint: If the hostility is severe, you may have grounds for a complaint to the Queensland Human Rights Commission under anti-discrimination laws.

Important note: Psychological injury caused by your employer's poor handling of your return to work may form the basis for additional compensation claims, including potential common law damages if the employer was negligent.

Step-by-Step Process

When your employer fails to provide suitable duties or a return-to-work plan, follow these steps:

1. Obtain medical evidence (Day 1) - See your treating doctor immediately to get an up-to-date work capacity certificate that clearly states your restrictions, capabilities, and suitable duty recommendations. Provide copies to both your employer and WorkCover within 2 business days.

2. Request a written return-to-work plan (Day 2-3) - Send your employer a formal written request (email is fine) asking for a return-to-work plan with suitable duties, referencing your medical capacity. Keep a copy of this request and note the date sent.

3. Contact your WorkCover case manager (Day 4-7) - Call 1300 362 128 to report your employer's failure to provide suitable duties. Explain what you've requested, provide your medical evidence, and ask WorkCover to intervene. Get the case manager's name and a reference number for your complaint.

4. Document all interactions (Ongoing) - Start a detailed diary or spreadsheet recording every conversation, email, and event related to your return to work, including dates, times, people involved, and what was said or decided.

5. Participate in WorkCover's intervention (Day 14-28) - WorkCover will typically contact your employer and will ask for an explanation to be given within 14 days. Cooperate fully with any workplace assessments, meetings, or mediation WorkCover arranges.

6. Escalate to formal dispute if unresolved (Day 28+) - If your employer still hasn't provided suitable duties after WorkCover's initial intervention, ask your case manager to lodge a formal dispute with the Workers' Compensation Regulator. This triggers a more formal investigation and can result in potential penalties for the employer.

7. Consider QCAT application if necessary (After 3 months) - If the dispute remains unresolved after WorkCover's processes, you can apply to the Queensland Civil and Administrative Tribunal (QCAT) for a binding determination (a final, legally enforceable decision). Legal representation is strongly recommended for QCAT proceedings.

8. Explore additional legal options (Ongoing) - If you've suffered psychological injury from the dispute or have been pressured beyond your restrictions, causing further harm, consult a lawyer about a common law negligence claim separate from your WorkCover claim.

Key Documents You’ll Need

Medical Certificates & Reports

• All medical certificates and reports from your treating doctor
• Details of injury, treatment, work capacity, and restrictions
  

Pre-Injury Employment Records

• Pay slips, employment contract and position description
• Evidence of your usual duties and pre-injury earnings
  

Employer Correspondence

• Emails, letters, texts, and meeting notes
• Shows your communication timeline and cooperation
  

WorkCover / Workers’ Compensation Documents

• Claim number, acceptance letter, case-manager correspondence
• Any rehabilitation or return-to-work plans
  

Workplace Evidence

• Photos, organisational charts, position descriptions
• Witness statements or proof that suitable duties exist

Legal Framework

Primary legislation: The Workers' Compensation and Rehabilitation Act 2003 (Qld) governs employer obligations for injured worker rehabilitation and return to work, including everything we’ve discussed above.

What this means for you:

• Section 228: Your employer must take ‘all reasonable steps’ to assist in your rehabilitation, not just minimal or token efforts.
• Section 42: Suitable duties must genuinely match your capacity, pay appropriately, and not jeopardise your recovery.
• Employer penalties are real: Non-compliant employers face financial penalties and may be ordered to repay WorkCover.
• WorkCover has enforcement powers: The regulator can investigate, issue compliance notices, and prosecute employers who breach their rehabilitation obligations.

Serious Red Flags in Your Return-to-Work Process

When to act immediately:

• Pressure to perform restricted tasks: Your employer keeps asking you to do work that exceeds your medical restrictions or dismisses the instructions on your doctor’s certificates.
  
• No contact within 14 days of your capacity certificate: Your employer fails to contact you or WorkCover within two weeks to discuss suitable duties, despite receiving your updated capacity assessment.
  
• Threats, intimidation, or retaliation: Any hint that you could be fired, demoted, or penalised for following your restrictions or not returning to full duties before being medically cleared.
  
• Hostile or uncomfortable work environment: Isolation, negative comments about your injury, or obstacles deliberately placed in the way of performing your suitable duties.
  
• Underpayment for suitable duties: Offered duties pay below 85% of your pre-injury earnings without a valid reason or WorkCover approval.

Common Return-to-Work Mistakes to Avoid

• Accepting unsuitable duties: Taking on work that breaches your medical restrictions can harm your WorkCover claim, delay recovery, and create grounds for claim disputes.
  
• Not documenting issues: Failing to keep written records of conversations, refusals, or non-compliance makes it harder to prove problems later.
  
• Delaying problem reports: Waiting too long to notify WorkCover about employer non-compliance limits your options and allows the situation to worsen.
  
• Working beyond your restrictions: Trying to ‘prove yourself’ by pushing through pain or exceeding restrictions can worsen your injury and be used against you.
  
• Missing medical appointments or certificates: Skipping treatment or failing to provide updated medical certificates can damage your claim and give employers excuses for not accommodating you.

When to Seek Legal Advice

Get advice as early as possible, especially if:

• Your employer denies that suitable duties exist: If your employer claims there is no suitable work available, even though the business has multiple roles or locations, you may need legal help to challenge the refusal.
  
• You have been injured further: If pressure to work beyond your medical restrictions or unsafe duties has caused a new physical or psychological injury, seek advice about additional compensation entitlements.
  
• The dispute has continued for more than six weeks: If WorkCover involvement has not resolved the issue within this period, the matter may need formal escalation through complaints or tribunal action.
  
• Your employer has threatened dismissal: Any suggestion that your job is at risk because of your injury or compensation claim may amount to unlawful termination or discrimination, requiring urgent legal advice.
  
• You are considering QCAT or tribunal processes: Tribunal matters are complex, and employers often have legal representation. Professional advice ensures your case is properly prepared and presented.
  
• Multiple issues are occurring at once: If you are dealing with several problems such as no suitable duties, pay disputes, a hostile environment or pressure to exceed restrictions, a lawyer can provide a coordinated, strategic response.

Why early legal advice matters:

• Understand your full rights and entitlements: Many workers do not realise they may be eligible for multiple forms of compensation, including WorkCover benefits, common law claims and TPD through superannuation.
  
• Access rehabilitation and support sooner: A lawyer who knows the WorkCover system can help you get quicker access to rehabilitation, treatment providers and vocational assessments.
  
• Protect your claim from avoidable mistakes: Errors such as accepting unsuitable duties, missing deadlines or agreeing to unfair arrangements can reduce the value of your claim.
  
• Get guidance before time limits run out: Different claims have strict time limits, including six months for WorkCover and three years for common law. Missing them can mean losing important entitlements.

Key Takeaways

Remember these essential points:

• Your employer must actively assist in your return to work: Simply claiming ‘no suitable work exists’ without providing detailed evidence to WorkCover breaches their legal obligations and may result in penalties.

• Suitable duties have specific legal requirements: Work must match your medical capacity, make attempts to pay at least 85% of pre-injury earnings, and not jeopardise your recovery. Anything less may not be considered suitable.

• WorkCover is your primary support for disputes: Contact your case manager immediately by calling 1300 362 128 when problems arise. WorkCover has enforcement powers to compel employer compliance and protect your rights.

• Documentation determines dispute outcomes: Detailed records of all medical evidence, communications with your employer, and incidents of non-compliance dramatically increase your chances of a successful resolution.

• You can refuse unsafe work legally: You're not obliged to perform duties that exceed your medical restrictions or expose you to risk, regardless of how much your employer pressures you.

Get Help Now

If your employer is failing to provide suitable duties or a return-to-work plan, getting early legal advice helps you understand your rights, access the rehabilitation you need, and protect your entitlements to compensation. These situations can become complex quickly, particularly when employers are uncooperative or disputes with WorkCover arise.

Smith's Lawyers has extensive experience helping injured workers in Queensland navigate return-to-work disputes, WorkCover claim problems, and other related issues. We understand both the statutory WorkCover system and common law claims that may arise when employers breach their obligations, causing you further harm.

Contact Smith's Lawyers today:

• Call 1800 960 482 for a free, no-obligation consultation with an experienced work injury lawyer who can assess your situation and explain your options clearly.

• No upfront costs: We operate on a No Win, No Fee, No Catch® basis, meaning you pay nothing unless your claim is successful. There are no hidden fees or unexpected costs.

• Request a callback: Use the form below to provide details of your situation, and our team will contact you to discuss how we can help.

Don't let your employer's failure to provide suitable duties jeopardise your recovery, income, or future employment. Understand your rights and take action early on to shift the scales in your favour.