Can I Claim WorkCover After Resignation or Termination?
Yes, individuals who have been terminated at work are still eligible to claim workers compensation, provided they can still prove that they suffered an injury or illness as a result of their employment. However, it may be more difficult to enter a successful workers compensation claim as the law states you are required to lodge a claim as soon as possible after the injury occurs and as such, you must be able to justify why you waited until after your employment ceased to lodge the claim.
Can I Resign While on WorkCover?
Individuals can resign from their job while they’re on workers compensation, as long as they:
- Give the correct notice period to their employer, and
- Can use the workers compensation period as the notice period
Key Considerations When Resigning While on WorkCover
Risks to Payment
Whilst individuals are entitled to resign while on workers compensation, it may affect their WorkCover entitlements, especially for employees currently receiving weekly payments.
Under the WorkCover Scheme, if a worker resigns for reasons “unrelated to the worker’s incapacity” then the worker’s weekly compensation payments may be reduced or terminated. This is because, under workers compensation obligations, you must demonstrate you are ‘ready, willing and able’ to return to work duties.’ Starting a new role with a different employer may be seen as a breach of these duties.
If you wish to resign, you should give your employer the correct notice period of your resignation, which may be taken as the workers compensation period. The notice period can differ depending on what award/agreement your employment is under. Additionally, individuals wishing to resign may consider the timing of this as WorkCover payments occur at a higher rate for the first 13 weeks.
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.
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 this six month period the employer can terminate an injured employee after they have met their obligations. Even after termination, the employee may still be eligible to receive worker’s compensation benefits like weekly payments and medical expenses.
Under the National Employment Standards, if an employer dismisses an employee while they’re away from work on workers’ compensation, they need to give the employee written notice.
Employers can choose to:
- give the employee their minimum notice period which can run at the same time as their absence on workers’ compensation
- pay out the notice (also known as a payment in lieu of notice), or
- give a combination of the two
Some employers who are covered by an award, enterprise agreement, or other registered agreement or employment contract may have a different notice of termination entitlements when they are off work on worker’s compensation and may be entitled to payment in lieu of notice.
Is it Legal for an Employer to Make an Employee Redundant While On Workers Compensation or WorkCover?
Yes, it is legal for an employer to make an employee redundant after the statutory 6 month period, as long as they have fulfilled necessary obligations and ensure 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 worker’s 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 duties prior to injury
Do Compensation Payments Continue if an Employee is Fired While on WorkCover?
If an injured employee is fired as a result of their injuries or inability to perform normal 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.
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About the Author
Sean is a member of the personal injury team with extensive experience in representing injured clients at the Personal Injury Commission as well as in the District and Supreme Courts of NSW.