Injured workers employer wants 100% physically and mentally fit staff only

Injured worker “R” kindly shares his story with us. Whilst he has undergone three surgeries and is doing all he possibly can to return to work, he has been told by his employer that they want him back only when/if “100% mentally and physically fit”. Now that the injured worker’s injury will take a long time to heal and recover, his rude and bullying employer appears to be making a sly case for constructive dismissal…

Injured workers employer wants 100% physically and mentally fit staff only

My boss won’t allow me to return to work unless I’m 100% physically (and mentality he keeps saying) fit. I’ve now had 3 surgeries in relation to my injury and insurance have been really good because they see I want to get back to work and am constantly doing all exercise vigorously so I can return to work…

Unfortunately, I’m now being bullied by my employer an senior management to leave and was even told by my manager after my second surgery to F**K OFF if I didn’t like the way that he spoke to me. FYI – super aggressive and confrontational.

At first they were OK but now that they know the fracture is very serious and that recovery will take a very long time, they are looking to terminate me as soon as possible by any means possible.

They tried giving me a formal warning for neglect of my duties a few weeks after my second surgery whilst I was coming to work medicated because I wanted to at least try for them.

Now I’m convinced they keep saying 100% physically and mentality fit so they can terminate without any ramifications.

I’ve as last ditch effort to further frustrate me my boss had changed my email password for my remote access without the courtesy of even telling me.

He then emailed me the following day stating I neglected to monitor my emails hence why he removed access. I didn’t reply to him as I found this completely petty and and exactly what he wanted. FYI- I had out of office on informing all the dates I’m on leave an that any urgent matters should b directed to my manager ( number and email provided). Oh did I mention his email regarding my email came 3 days after my surgery whilst I’m on approved leave.

I apologise if my post I not coherent as I’m currently writing this message from my bed and whilst I’m heavily medicated…

Thank you so much R for sharing your nightmare with us. Again it is stories like this that need to be plastered all over the media, the internet and be brought to the attention of our ignorant policy and legislation makers, such as Barry O’Farell who so wrongly believes that notable cuts such as  reductions of weekly benefits after 13 weeks, a five-year cut-off for compensation payments for full-body impairment; and a one year cap for hospital and rehab expenses, will “incentivise” injured workers to return to work!

Whilst, as your own story highlights, often it is the employers who blatantly refuse to return more than eager injured workers to work! This happens to countless injured workers, and sadly many do get sacked for no other reason other than having suffered a workplace injury, often caused by the negligence of the employer.

You need to remember that termination of employment is seen by legislators as actually preventing the rehabilitation process from occurring, with the relevant workers compensation legislation usually providing the injured worker with a reasonable period of time in which to recover from their injury or illness before dismissal may be considered as an option for an employer.

In addition to the prohibition to termination under the Fair Work Act, there are prohibitions from termination of employment undermost relevant state or territory workers compensation / workcover laws. For example:

it is an offence if an injured employee is dismissed by the employer, within 6 months of incapacity, solely or principally because the employee is not fit for employment in a position as a result of an injury that entitles the employee to workers compensation.

Very similar prohibitions to terminating an injured worker while absent on workcover also apply under workers compensation legislation in most other states and territories, although the period from dismissal varies depending on the jurisdiction.

For  example, in Victoria: An employer is required to keep a position open for an injured worker for at least 12 months from the date of the injury.

In addition, an employer must prepare a return-to-work program for any injured worker off work for 20 days or more and regardless of the size of the business.

View relevant legislation in all states >>

You my just want to point out the relevant bit of the legislation to your employer from hell!

Also, remember to keep documenting and diarising everything that is occurring with your employer – this may provide you and your lawyer with the much needed evidence later on, should you end up unlawfully, unfairly or constructively sacked.

Our thoughts are with you (and any other injured worker in a similar situation).

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My opinion is that once you have been glued with a tag “Previously injured worker” or “Received compensation before”, no employer would be willing to hire you. Rehabilitation providers are there to help THEMSELVES NOT YOU. More times you visit to them, more money they make. They would teach you how to write a resume and prepare for interview skills, even though you have been a HR manager for last 20 years. You might have been asked to get further education or training. Remember, your problem is not lack of skills or knowledge but YOUR INJURY. If your injuries have… Read more »

It also MAY help to ask your case manager to appoint a rehab service provider, who will then liaise with your employer re your return to work and help prepare the return to work plan, ensure you have adequate support such as ergonomic aides in the workplace and identify those jobs that you can still undertake with your injury.
Sometimes when a workcover person (i.e rehab provider) is present, the employer may suddenly behave a tad more appropriately, knowing that all is documented and monitored.

Pauline Pope
That statement about wanting you physically and mentally 100% fit is very dangerous indeed. He’s obviously trying to imply that you have a mental illness. My own employers tried to prevent me returning to work by claiming that I was mentally ill. I was depressed, but my initial injury was a back injury which cleared after a few months of physio and regular strengthening exercises. My depression had alleviated enough for me to return to work, but it became very clear, very quickly that the employers wanted to be rid of me. Having failed to prepare a return to work… Read more »

You can tell your boss that you are 100% physically fit for work(if you want), as there is NO clinicaly proven method for measuring maximal effort. You can also ask for stats for what physical abilities are required to fulfill the role you have with the company. I would try the second suggestion first and see what they say.