Yes, you generally have the right to resign from your employment in Queensland even while receiving WorkCover benefits, however, different rules and laws can apply to resignation, dismissal and redundancy when you are an employee receiving workers compensation, so it is crucial to consider the points below.
Important Considerations
You can resign from your job while you are receiving workers compensation, so long as you consider the following:
- Notice Period: You must ensure that you provide your employer with the correct amount of notice of your resignation by adhering to the mandated notice period outlined in your employment contract or relevant award. Notice periods vary and can be different in each award and registered agreement. Check Fair Work Australia’s Resignation and Notice page for more info.
- Remaining Entitlements: If you are a full time or part time employee and you resign, you are entitled to your accumulated annual leave and long service leave. You are not entitled to your accumulated personal/sick leave.
- Future Income: If your injury means long-term inability to work, resigning might leave you without additional income until alternate employment is found, or alternate social security payments or lump sum are secured. Compensation for this past and future economic loss may be sought by bringing a common law claim for damages, so it is important to seek legal advice to discuss your options in this regard.
Impact on WorkCover Claims
- Statutory WorkCover Benefits: Payments aimed at replacing lost wages (the weekly WorkCover benefits/payments that you will receive if your WorkCover claim is accepted) may be affected if you resign for an unrelated reason or to go to an unrelated job. It's vital to seek legal advice about when termination of these is 'allowed' by the insurer if your recovery pattern becomes complex.
- Ongoing Support: Resignation likely wouldn't hinder rights to medical expense reimbursement or future lump sum compensation for any permanent limitations (provided your claim continues to be 'valid' - the issues here can get legally tricky).
Impact on Common Law Claims
- Duty to Mitigate Loss: A successful common law claim often revolves around demonstrating the financial impact that the at-fault party's negligence has had on you.
However, you as a claimant will also need to demonstrate that you are taking steps to “mitigate” your medical and financial losses (for example, attending recommended surgeries and rehabilitation, or returning to work and continuing to work once you are able to).
Resigning could, under some circumstances, impact on your ability to prove that you are taking steps to mitigate your loss. If you are intending to, or already have an active personal injury claim, it is important to seek legal advice before resigning, if possible.
- Timing is Key: If you anticipate making a common law claim, but also intend to resign as the role is no longer suitable, timing and how you structure your reasons for resignation can be crucial to safeguard your legal position. Always get specialist legal advice prior to making any work related decisions.
Don’t Risk Your Right to Payment
Be careful that resigning does not take away your right to further payment. Compensation requires proof of lost wages, so if you quit and your boss says you could have kept earning an income with them, this might negatively affect your rights to a compensation income.
You and your employer have an obligation of 'mutuality'. That is, to show that you are committed to your employment relationship.
Your employer has an obligation to provide you with lighter duties that are suitable while you recover from your injury.
Dismissed or Made Redundant by Your Employer Whilst on Workers Compensation?
If an employer dismisses you while they’re away from work on workers compensation, they are entitled to do so, provided they give you written notice in addition to the below:
- Give you the minimum notice period, which can run at the same time as your absence from work;
- Pay out your notice period (also known as payment in lieu of notice); or
- Give a combination of the two.
If you are covered by an award, enterprise agreement, other registered agreement or employment contract should check if they have different notice of termination entitlements for when they are away from work on workers’ compensation as they may be entitled to payment in lieu of notice.
If you are made redundant, your employer needs to comply with the rules for providing notice as set out above. They must also pay you our any entitlements, including redundancy pay if that applies.
Key Points
- Do Not Rush Decisions: It's generally unwise to resign impulsively. Take the time to assess your options thoroughly.
- Document your Circumstances: Keep notes detailing any work issues leading to your resignation, medical evidence of continuing impairment and its link to your ability to do that particular role, and other factors in play at the time.
- Seek Legal Advice: A knowledgeable work injury lawyer will help you make strategic decisions for your best interests based on the individual complexities of your circumstances. Smith’s are work injury compensation experts, offer free initial advice and run all claims with no upfront costs or risks.
