We hear it all the time. You’ve had a few months off work with a sore shoulder, or maybe your back has been playing up for a few weeks and it’s pretty bad by the end of your shift. You’re wondering: Can my boss fire me if I’ve hurt myself at work? Am I at risk of getting sacked if I make a workers’ compensation claim?
Many workers seem to have a concern that their boss might terminate their employment if they have suffered an injury that stops them from working. Some think their employer might see them as a risk to the business, or just a waste of time.
We won’t lie: we know it happens. But we’re here to tell you that if you’ve been injured at work, you still have employment rights and the law protects you from being fired.
If this sounds like you, or someone you know, read on to find out what your options are.
Can I return to my old job after injury?
Injuries and accidents at work happen, and most people only need a few weeks off. If you’ve been injured, you have the right to return to your former position once you’ve recovered. This applies to all workers, even if you're casually or part-time employed. This is also the case even if you’ve made a WorkCover claim.
Research shows that returning to work after an injury is good for your mental and physical health and wellbeing. Many of our clients talk about the loss of purpose when they’ve been injured, so we understand how important it is to get back to what you love.
Even if you’re not back to 100 per cent, you may still be able to return to work if your GP or specialist authorises it. Your boss might just have to modify or reduce the work you were doing before until you’re fully back on your feet.
What if my employer doesn’t take me back?
If you’ve already been terminated by your employer, you can ask to be reinstated if the injury occurred within the past 12 months. To do this, you will need to provide a doctor’s certificate stating that you’re fit to return to work.
But if your employer refuses to give your job back then you can go to the Queensland Industrial Relations Commission to order the employer to return you to your old role, or have them agree to terms like a planned start date.
There are strict time limits to be aware of, so it’s best to talk to your union representative or seek legal advice from an employment lawyer.
Can I be fired for making a workers’ compensation claim?
No. This is your right, and it’s protected by law.
In Queensland, employees cannot be terminated from employment as a direct result of a work-related injury for a period of 12 months after the incident. There’s a maximum penalty of a fine up to $5,338.00 for employers guilty of doing this.
These laws are also designed to stop employers from other types of unfair treatment like denying an injured worker an advancement opportunity, suspending, or demoting them, or restricting or reducing pay or hours of work.
There is only one instance where this rule doesn’t apply: if an injured worker has not returned to work for over 12 months, and there are no suitable light duties available, then an employer can legally terminate the employee. Even in this event, it has to be determined that the injury is likely to keep you out of the game for another three months.
What if my role is made redundant?
If your role is made redundant while you’re out on workers’ compensation, your boss still needs to follow the normal rules.
According to the Fair Work Ombudsman, the National Employment Standards requires employers to provide written notice. They can choose to:
- Give the minimum notice period; or
- Payment in lieu of notice; and
- Pay out any entitlements including redundancy pay if it applies
We understand, however, that many employers particularly in trades industries, find other ways to let workers go, including giving the excuse that there’s not enough work for you anymore. While these kinds of cases can be hard to prove, it might be worth your while seeking independent legal advice.
What if my employer asked me not to make a WorkCover claim?
This is illegal. Your employer cannot stop you from making a WorkCover claim.
It is an unfortunate fact that some employers will put pressure on an employee to not lodge a claim, or make a report following a workplace injury. This kind of pressure can come in many forms, but it’s important to remember that you are legally entitled to lodge a WorkCover claim.
Furthermore, your employer is legally required to report a notifiable incident to Workplace Health and Safety Queensland, and notify WorkCover Queensland of the incident. They actually have to do this even if you don’t end up making a claim.
If your employer is pressuring you not to file a claim, or threatening to fire you if you do, seek independent legal advice. This is against the law (and your employer knows it).
What can I do if this happens?
When you’re injured at work, your focus should be on getting better – not worrying whether or not your boss will let you go.
If this happens to you, you should seek independent legal advice or resources to guide you. A good place to start is the Fair Work Australia website, or your local community legal centre.
The good news is that your employment is protected, as is your right to make a WorkCover claim in the first place.