Individuals who have been terminated are still eligible to file a workers’ compensation claim, provided they can prove they suffered an injury or illness arising from their employment.
However, it may be more challenging to enter a successful workers’ compensation claim as the law states you are required to lodge a claim as soon as possible after a workplace injury occurs, and as such, you must be able to justify why you waited until after your employment ceased to lodge the claim.
This is where an understanding of the legal parameters, claim timelines, and the exact timing for seeking independent advice becomes invaluable.
Can I Resign While on WorkCover?
Individuals can resign while on workers’ compensation, provided they give the required notice period to their employer.
Considerations When Resigning While on WorkCover
A worker is legally entitled to resign while on workers’ compensation, and resignation itself does not automatically reduce or terminate entitlements.
There is no provision in the NSW legislation that says:
- A worker must remain employed to receive weekly payments; or
- Resignation, of itself, disentitles a worker to compensation.
Weekly payments are determined by work capacity, not employment status. The legislation does not impose a penalty for resigning for personal or non-medical reasons.
Working for a New Employer
If you choose to work for a new employer and, as such, have no demonstrated incapacity to work, your weekly wage benefits will cease in accordance with the legislation.
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Redundancy While on Workers Compensation
In New South Wales, it is illegal for an employer to terminate an employee within the first six months of a workplace injury purely because the employee is unfit to resume work at that time.
After these six months, the employer may terminate an injured employee, subject to applicable employment laws. Even after termination, the employee may still be eligible for workers’ compensation benefits, such as weekly payments and medical expenses.
Is it Legal for an Employer to Make an Employee Redundant While on Workers Compensation or WorkCover?
Yes, an employer may make an employee redundant after the statutory 6-month period, provided they have fulfilled all necessary obligations and ensured the employee continues to receive their entitlements.
In accordance with workers’ compensation legislation, if an employer wishes to terminate an employee on workers’ compensation after six months, they are required to:
- Play an active role in developing an injury management plan to get an injured employee back to work. This step is usually done hand in hand with the workers’ compensation insurer.
- Comply with all their obligations set out in the finalised injury management plan;
- Seek to provide the injured employee with suitable work duties once cleared to return to work, under certain restrictions (for example, shorter hours, restrictions on weights lifted, etc.);
- Provide suitable work duties, wherever practically reasonable, that are similar to the responsibilities before injury.
Do Compensation Payments Continue if an Employee is Terminated While on WorkCover?
If an injured employee is terminated due to their injuries or inability to perform regular duties, they will remain eligible for ongoing weekly wage payments from the relevant insurer. If an injured worker has been receiving compensation benefits and has been made redundant, workers’ compensation will continue to be paid if the worker’s doctor certifies they are unfit to carry out pre-injury duties:
- If certified unfit to return to work altogether, an employee will continue to receive reasonably necessary medical treatment and weekly benefits in accordance with their entitlement period.
- If certified unfit for pre-injury duties but fit for suitable duties, the employee will continue to receive medical treatment and pro-rata weekly benefits in accordance with their entitlement period.
If the employee has left their employment and the employer was previously paying the weekly benefits, this employment relationship will now cease, and the worker’s compensation insurer will pay the weekly benefits directly to the employee.
Key Takeaways
- Employees terminated from their job can still claim workers' compensation if the injury or illness is work-related.
- Claiming after leaving a job may be challenging; it's crucial to justify why the claim was made post-termination.
- Workers on compensation can resign, provided they give the correct notice period.
- In NSW, it's illegal to fire an employee within six months of injury solely due to incapacity for work.
- Post six months, redundancy is legal if employer obligations are met and employee rights are maintained.
- Compensation payments may continue even if an employee is fired due to injury.
Need Expert Advice on Workers Compensation?
Submitting a Workers’ Compensation claim? Ensure you know your rights and understand what you are eligible for before making your application by getting independent legal advice.
The team at Burke Mead Lawyers are experts in personal injury law and workers’ compensation claims. Our experts can assist you throughout this process to protect your legal rights and responsibilities – contact Burke Mead Lawyers today.
