Can my employer sack me while I am on WorkCover?

Have you made a WorkCover claim for an injury suffered at work? Are you concerned that your employer might sack you because you have not been able to return to work? Have you been able to return to work on a part time basis only?

Work-related injuries can be traumatic, and the journey to recovery can be long. It is important that you know your rights at work while recovering from injury and receiving WorkCover payments.

When can my employer sack me while I am on WorkCover?

Your employer cannot terminate your employment on the basis that you are unfit to perform your pre-injury jobs for a period of 52 weeks of incapacity, whether those 52 weeks are consecutive or not.

Unfortunately, after that period, if you remain unfit to perform your pre-injury job, your employer no longer has to keep your job open for you.

For example, Rebecca is a nail technician and suffers a workplace injury that limits the range of movement in her right hand. As a result, Rebecca is unable to perform her regular duties as a nail technician and after 52 weeks, she is still unable to return to her pre-injury work. The nail salon already has a full-time receptionist who also takes care of all of the general business administration so it is unlikely that there are other suitable roles for Rebecca within the salon.

If Rebecca’s injury is likely to persist, and there continues to be no suitable roles for her in the salon, her employer may be entitled to terminate her employment.

However, it is important to note that if Rebecca’s employer terminates her employment, Rebecca will still be entitled to receive all her WorkCover benefits. Rebecca’s entitlement to weekly payments of compensation may continue up to a total of 130 weeks if she remains unfit to perform her pre injury job.

What weekly payments am I entitled to?

If your WorkCover claim is accepted, you are generally entitled to receive weekly payments for a maximum of 130 weeks.

In order to receive weekly payments, you must provide your employer with a certificate of capacity from your treatment provider. The certificate will provide a diagnosis of your work-related injury and list your work restrictions.

First Entitlement Period – 13 Weeks

For the first 13 weeks of incapacity, you are entitled to receive 95% of your Pre-Injury Average Weekly Earnings (PIAWE) up to a maximum payment of $2,380.

Second Entitlement Period – Weeks 14 to 130

From week 14 to week 130 of incapacity, you are entitled to receive 80% of your PIAWE up to a maximum of $2,380.

After 52 weeks, your weekly payments will be further reduced if your PIAWE included shift allowances, other allowances or overtime payments.

Weekly Payments After 130 weeks

After 130 weeks, weekly payments will only continue if you are considered to be unfit to perform any suitable work and that incapacity is likely to continue indefinitely. 

Alternatively, you may be entitled to receive top-up payments where you have returned to work, are permanently incapable of increasing your hours and meet the minimum thresholds set in the legislation for receiving those payments. 

It is important to note that the amount of weekly payments you receive must be reduced by any amount that you are receiving from any pension such as a pension associated with your superannuation fund, retirement or a disability payment.

Has your employer sacked you while on WorkCover?

If you have sustained a workplace injury and have been sacked within 52 weeks of incapacity to perform your pre-injury duties, you should seek tailored legal advice to understand your options. At Gordon Legal, every case is personal and we put our clients first. Get in touch with our experienced team today on 9603 3000.