One of the trickiest areas a business may have to navigate is their obligations when managing injured workers whilst on workers’ compensation, and the specific rights and entitlements these employees have. Unfortunately, workplace injuries can happen from time to time, and when this does occur, employees will have the right to lodge a workers compensation claim. While the complex regulations surrounding this area can seem considerably overwhelming for employers, there are a few general guidelines we recommend following to make managing this issue less daunting. These guidelines aim to educate you about the key risk factors involved in managing a worker on workers’ compensation and point out the relevant types of experts who can assist you with navigating the unique challenges that may arise in this area.

 

Immediate steps to take

The most pressing and immediate steps an employer will need to address in the aftermath of a workplace incident will be to ensure the safety of the injured worker and notifying any relevant regulatory body of the injury that has occurred. This will include ensuring, where necessary, that the injured worker has received relevant medical assistance, completing an incident report, advising the insurer promptly of the incident and advising the relevant safety authorities if it is a notifiable incident (e.g. SafeWork NSW or WorkSafe Victoria). However, in addition to this, there are also a number of things an employer should do to maintain compliance with the relevant workplace compensation laws, and to continue providing effective support to their injured worker.

 

Return to work plans

In line with all state and territory workers’ compensation legislation, an employer needs to establish a “return to work” plan or some variation of it (e.g. a personal injury plan OR an injury management program) for their injured worker (see for example s.25 of the South Australian Return to Work Act 2014). A “return to work plan” typically sets out an injured worker’s goals, steps to take to achieve them and how long it might take. Normally, the worker, employer, worker’s treating doctor, insurer and rehabilitation provider work collaboratively to craft a suitable “return to work” plan.

 

Suitable duties

It is often the case that an injured worker is not able to resume their normal duties straight away following a workplace incident. Workers’ compensation laws across all jurisdictions impose a requirement on employers to provide suitable or alternative duties to their injured workers (within reason). The term “suitable” is often not clearly defined by legislation, however, some jurisdictions provide guidance. Employers should think about the following factors when determining whether certain duties are suitable (see for example s.75A of the Northern Territory’s Return to Work Act 1986):

  • Worker’s age;
  • Worker’s experience, training and other skills;
  • Worker’s potential for rehabilitation training;
  • Worker’s language skills; and
  • Impairments suffered.

 

Dismissing an employee on workers’ compensation

While on worker’s compensation, workers are normally protected from dismissal due to their unfitness for work for a specified period of time (also known as a ‘protected period’). The length of this period varies from one jurisdiction to another. For example, an injured worker in Queensland is protected for 12 months after they sustain an injury (see s.232B of the Workers’ Compensation and Rehabilitation Act 2003), whereas in NSW, the protection period is 6 months after the worker first became unfit for employment (see s.248 of the Workers Compensation Act 1987). It is important to seek legal advice on this aspect before making any decisions about terminating a worker as this can be an incredibly risky and difficult area to navigate compliantly.

There are situations, however, where an employer may be considering termination of an employee within this protected period for reasons genuinely unrelated to their fitness for work such as due to redundancy or for issues of misconduct. Although this can come with a high degree of risk due to the complex interaction between employment, discrimination, and workers’ compensation laws, this does not mean employers are left with no options. However, these matters would need to be handled with significant care and would need to consider the risks of each matter on a case-by-case basis. Typically, we would recommend that any employer in this situation seek guidance on their approach from an appropriately qualified advisor or lawyer at the earliest opportunity, to ensure they are aware of any relevant obligations to their employees and associated risks.

 

Disputing claims

Employers may also benefit from engaging a workers’ compensation lawyer to assist with disputing a claim where this is necessary. Whilst undoubtedly most claims will be genuine and will thus be accepted by insurers, there may be situations where an employer may refute the circumstances of the injury or their liability in the matter. It is important that if the business is in this situation that they act quickly and seek appropriate advice to challenge a claim. Employers should bear in mind failing to robustly defend against a claim (even a weak one) increases the likelihood of such a claim being accepted. This could result in exorbitant increases in premiums which ultimately affects the business’s bottom line. Seeking expert guidance and advice on this process can help to put in place effective strategies to mitigate premium hikes.

 

Reviewing safety processes

Finally, when a workplace injury happens, it is an opportunity for employers to review their safety processes and systems which may have contributed in some way to the injury and to ensure these remain adequate. Employers have an obligation to provide a safe work environment, and failing to address certain risks and hazards can increase the possibility of an employer having breached these obligations and facing significant penalties. A workplace injury can demonstrate an area in which the business may need to consider more robust processes, policies or training to avoid this from recurring in the future. It is important that a business is continually working to address and review the risks that may exist in the workplace, and that employees have been trained appropriately on how to safely conduct themselves at work. Keep in mind that it is important for employers to consider both the physical risks in the workplace, as well as psychosocial risks or issues that may impact the psychological safety of employees such as bullying, harassment or discrimination in the workplace.

 

If you need further help

If you have any queries about your obligations as an employer in managing or preventing injuries in the workplace and providing a safe work environment for your employees, please contact the HR Connect team for more information about how we can assist your business.

 

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.

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