Can I resign when I am on workcover?
Further to “Jax” question asking whether work (or workcover) is liable to pay his weekly payments, now that he has resigned from his job, we trolled our books and the web to find an answer, with an explanation. Well, ahum, the “bad’ news is that resigning from your job with your pre-injury employer “for reasons unrelated to your work related injury” is considered a “breach of mutuality”. This basically means that you are not making yourself “ready, willing and able” to perform any suitable duties offered by your employer. As a consequence, you may not be entitled to receive any further weekly payments!
Can I resign when I am on workcover?
In general Resigning when on workcover is not a good a idea
If, for example, you resign from your job with your pre-injury employer because you just can’t stand it anymore and want to accept a new job, then you would be breaching your obligation to perform suitable duties with your pre-injury employer.
Also, if the new job pays less than Average Weekly Earning’s you will not be entitled to receive any “top up” payments.
However, if you have ongoing restrictions and you resign from your pre-injury employment as a result of your injuries and disabilities and start a new job with a different employer that is suitable but pays less than your Average Weekly Earnings, then you may be entitled to be paid “top up” payments by the workers compensation insurer.
We also found out that the legislation is slightly different in each state
For example in South Australia, If you are not able to maintain the new job as a result of your injury, then you could bring a further claim for income maintenance/ weekly pay if you “restore mutuality” with your pre-injury employer. As in SA the employer where you were injured has to continue to provide you with suitable duties forever (unless you resign), unlike in Victoria where the employer has only 12 months duty of care after an injury.
In South Australia, you can try to do this by demonstrating that you are ready, willing and able to return to work and carry out suitable duties with your pre-injury employer. This can be done by presenting a WorkCover Medical Certificate and a new claim form to your pre-injury employer and asking them to provide you with suitable duties. However, your previous employer may not take you back. If they refuse to take you back, this could result in your claim being rejected and if this happens, make sure you seek legal advice from an experienced WorkCover solicitor.
Other workcover benefits
Even if you were to resign and obtained alternate, perhaps a more suitable job elsewhere and give up your entitlement to weekly payments, you are still entitled to have any reasonably incurred medical expenses paid for by the workcover insurer. This entitlement continues indefinitely in some states [or until you agree to accept a lump sum redeeming those entitlements in some states, such as in SA]
ENDING WEEKLY PAYMENTS
The Workers Rehabilitation and Compensation Act strictly controls the circumstances in which the insurer can stop your weekly payments. In most cases WorkCover must give 21 days notice and in all cases they must give you written notice setting out your right to dispute the decision.
According to Aussie Legal, weekly payments of compensation can only stop if:
- You agree.
- You resign your job with the employer.
- You are no longer incapacitated for work.
- You do not have a medical examination or provide a medical certificate when asked.
- You have returned to work (not just for a trial or rehabilitation).
- You refuse to undergo treatment or rehabilitation programmes in certain circumstances.
- You leave Australia without giving appropriate notice.
- You have a permanent disability and incapacity and you agree with WorkCover for a lump sum payment.
- You go to live interstate,without getting permission from Workcover.
- WorkCover successfully apply the two year review provision – the two year review provision is a complicated changing area of Workers Compensation law. In summary, after two years of incapacity, the insurer can assess your ongoing entitlement to weekly payments by deducting wages you could earn (not the wages you are necessarily earning) in suitable employment. This is a complex and developing area of Workers Compensation law and you should seek detailed legal advice on your entitlements.
Summary:
You may also want to read
- What if an injured worker resigns in the heat of the moment?
- Injured worker resigned but employer remained liable for workers compensation
Other Posts of interest
- Injured workers who cannot perform inherent requirements of the job can be sacked
Returning to work after work injury or illness – Vic Equal Opportunity & Human Rights Commission- What if an injured worker resigns in the heat of the moment?
- Injured at work – do not resign from your job
- Workcover rehab and termination issues
- WorkCover and termination of employment – overview
- Workcover case: does impairment equal incapacity
It is also important to realise that there are payment exclusion periods which apply to Centrelink payments if you are terminated and/or you resign. This is generally 8 weeks. However the penalty or preclusion period does not apply if the voluntary act (resigning) was reasonable or if the work was unsuitable for the person.
Reasonable would include things such as; an employer providing poor or unsafe working conditions; you weren’t able to do the work required (eg. Heavy lifting); the work had an adverse effect on your health; there was harassment at the workplace.
Unsuitable would include the work involves working more hours than a person’s capacity but you would need medical evidence such as a Centrelink Medical Certificate to show this.
Also if serving a non-payment period would result in severe financial hardship (having liquid assets of less than $2,500) due to an illness, impairment or condition requiring treatment to manage it, and you would not be able to afford the treatment after meeting your essential expenses or if you have a recognised cognitive, neurological, psychiatric or psychological impairment or mental illness – the non-payment period can be ended.
Keep in mind that the social security law’s intention in regards to non-payment periods or penalties is not to penalize people for something over which they have/had no control. Therefore if you are given a non-payment period ensure you appeal it – this process is free to do, and if you appeal this Centrelink are required to Continue your payments until the review is conducted.
It’s simple
Just return back to your doctor and get him to support that the other work is not suitable either ( we all know they will give you the worse job there to make you resign)
Then if you still have to do that work do it for half a day then leave in pain
And show that it’s not suitable
Great advice! Employers in SA are aware they must provide work indefinitely. It is very difficult to be allowed off the Workcover system in SA especially if your employer is large and can provide suitable alternative duties. Pushing people to take packages is the trend, resorting to bullying tactics and stooping to some very low tactics to achieve those ends is not uncommon. Hence SA has the reputation of the poorest return to work status in the country. I have had some good advice that this practice is not as accepted as once was. Some very good rationales are now required from large corporations and the public service on why they can’t provide suitable duties to willing and capable long term injured workers.