Workers’ Compensation and Employment Law: Same-Same, but Different

26 April 2018
If you have been injured in the workplace or if your psychological health has been affected by your employment, you may be eligible to make a claim for workers’ compensation under a State or Federal Workers’ Compensation Scheme (Comcare).

What some people may not know is that it is possible for a work related injury to attract employment law issues as well. The relationship between workers’ compensation law and employment law can sometimes be complex.

Injured workers are vulnerable employees within a workplace and sometimes this can expose them to instances of workplace bullying and harassment, discrimination, unfair dismissal or redundancy.

If a worker cannot perform their job properly due to an illness or injury, an employer may decide to take adverse action against that employee. For example, they may dismiss the employee or reallocate a job function to another employee. In this example, a worker may have rights to workers’ compensation and also employment law rights.

Similarly, sometimes a worker who is not suffering an injury can also be subject to workplace bullying and harassment, discrimination, unfair dismissal or adverse action. If the action itself causes injury to the worker, they may have rights under both workers’ compensation and employment law.

What should you do if you think you have a workers’ compensation and/or employment law claim?

There are strict (and different) time limits under both workers’ compensation law and employment law. If you believe you have suffered a workplace injury and/or are being treated unfairly, it is important to speak to your union and obtain legal advice to discuss these time limits and whether your employer is legally allowed to treat you that way. 

You have a right to make a genuine claim for injury at work; your employer is prohibited from taking adverse action against you because you have made a workers’ compensation claim, or if you have put in an incident report.

If you have made a workers’ compensation claim and/or you feel you are being treated badly at work, it is important you speak with your union or a lawyer about your rights. Some options you may have include:

  • Making a complaint;
  • Obtaining support to hold a mediation or meeting with your employer;
  • Applying for a review of a decision which you feel is wrong;
  • Accessing employment benefits, such as sick leave or other benefits contained in your Enterprise Bargaining Agreement.
  • Accessing entitlements through superannuation insurance benefits. 

If you have both workers’ compensation and employment law disputes running at the same time, it is important that your lawyers and/or union representative know about each other and the disputes. This ensures that all representatives are aware of the steps being taken, the basis the claims are being made, and it allows them to consider how the facts in one dispute relate with the other dispute. It is also important that your lawyers and/or union representative communicate with each other before one dispute resolves. This is because, sometimes, resolving one dispute might impact the rights and entitlements you have under the other dispute.

If you are a contractor, you may still have entitlements if you are injured whilst working and have rights under employment law. If you are a contractor and you are experiencing the issues discussed above, it is important that you get some advice from your union and/or a lawyer. Contractors are entitled to protection from discrimination and harassment and you may in fact be considered to be an employee under workers’ compensation law.

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