Did you know that in NSW an injured worker who has been terminated because of his injury can seek reinstatement when the (injured) worker becomes fit for employment (even with some restrictions) within 2 years of the termination.
Further to some recent comments about the widespread practice of “dodgy” rehabbers proposing bizarre “suitable/alternative work” to injured workers, courts have found that some (many!) proposed alternative occupations for injured workers are simply unrealistic.
An employer (Centrelink) ignored a bullied worker’s “clear signs of distress”, and then had the audacity to tell the psychologically injured worker to return to a role where her managers bullied her. Centrelink was found liable for the worker’s psychological injury.
Doctors’ reports—particularly IME reports— on injured workers are all too often painfully lacking any understanding of the injured worker’s workplace or the inherent requirements of injured workers’ job/position. This often results in the assessment of a “fit-for-work” injured worker, without, for example, any consideration(s) to restrictions or reasonable adjustments that should be made in the workplace.
Rehabilitating injured workers or referring them to a rehab service as soon as possible following a work injury (or illness) is crucial, according to the authors of an Australian study of 95,470 injured workers. The report found that the average time from when an injury occurs to when return to work or rehabilitation support is sought is a whopping 90 weeks, or just under 2 years.
As we have highlighted in our previous article, managing work-related injuries can be a delicate exercise, with multiple – and sometimes conflicting – issues. For example, what if the worker has a right to return to work (as set out in a contract of employment) but the employer is concerned they’re still not fit and their return could breach work health and safety laws?
Figures provided by the WorkSafe Victoria suggest that many treating doctors (GPs) don’t have confidence that workcover insurance companies and injured worker’s employers are genuinely interested in rehabilitating injured workers.
The following Fair Work unfair dismissal case highlights that employers need to be aware of the importance of following process and procedure when dismissing an (injured) employee, even where there is, allegedly, a valid reason for dismissal. Whilst there may be a valid reason for dismissal -in this case of an injured worker- can still be considered harsh, unjust and unreasonable if proper termination procedures are not followed.
It’s the phone call (or the letter) that any injured worker dreads and it states something like this:
“We hoped (yeah, right!) you would recover enough from your injury to go back to your (pre-injury or old) job, but, eh look, you’ve been away on extended of leave without pay for over 2 months now.”
“You’ have no more sick leave and have also exhausted your annual leave.”
“We can’t keep you, We can’t keep your job open forever, I’m sorry (yeah right!) but we’re going to have to let you go and replace you. Surely you understand that?”
It happens all the time! And many injured workers are pressured into accepting this situation ; others are (falsely) led to believe that their employer is within their rights to, well yes, replace them.
Guess what? It’s not on and it is illegal to terminate an injured or ill worker who is on temporary leave to recover.
Our evil system is called workers’ COMPENSATION. It is NOT called workers’ Return to Work nor No-medical-bills-for-amputees or anything else for that matter.
Here’s the dirty bottom line – All the current discussions about Return to Work – especially forcing RTW- have no place in workers’ compensation. In other words RTW (Return to Work) is bullsh*t. And all ridiculously insulting cessation or capping of payments for medical and like services for permanently INJURED WORKERS is also bovine excrement.