Can I be dismissed while on WorkCover in Queensland?
Yes, you can be dismissed while on WorkCover in Queensland, but strong legal protections exist. Dismissal cannot be solely due to your injury or claim, and employers have strict obligations regarding your return to work.
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How it works in practice
Protections in Queensland
Queensland law provides significant protections for workers on WorkCover. It is illegal for an employer to dismiss a worker simply because they have sustained a work-related injury, illness, or are receiving workers' compensation. This is often covered by general protections against discrimination under the Fair Work Act 2009 (Cth) and specific anti-discrimination provisions within Queensland's workers' compensation legislation.
Employer Obligations
Employers have a legal duty to support an injured worker's return to work. This includes providing suitable duties, making reasonable adjustments to the workplace, and ensuring the worker's capacity to perform tasks is properly assessed. These obligations continue while a worker is on WorkCover. Any dismissal must not contravene these duties or be a direct result of the injury itself.
When Dismissal is Permitted
Dismissal is only permissible under specific, lawful circumstances. These include genuine redundancy, serious misconduct unrelated to the injury, or if the worker cannot return to their pre-injury role (or a modified one) and no other suitable role is available, even after all reasonable adjustments have been made. The employer must be able to demonstrate that the dismissal was not related to the injury or WorkCover claim.
Important exceptions
Dismissal is permissible if it's due to a genuine redundancy and not linked to the injury. It's also allowed for serious misconduct that is unrelated to the work injury. If, after all reasonable adjustments and rehabilitation efforts, a worker remains unable to perform the inherent requirements of any available role, dismissal may be legally justified. However, the onus is on the employer to prove the dismissal was not discriminatory or unfair and that all obligations were met. The worker's WorkCover claim itself cannot be the reason for dismissal.
What you should do now
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Seek immediate legal advice from an employment lawyer specializing in Queensland industrial relations and workers' compensation.
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Contact WorkCover Queensland or the Fair Work Commission for clarification on your rights and employer obligations.
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Gather all relevant documentation, including medical certificates, return-to-work plans, and correspondence from your employer regarding your dismissal.
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Review the stated reason for your dismissal and assess if it aligns with anti-discrimination or unfair dismissal laws.
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Consider lodging an unfair dismissal claim with the Fair Work Commission or a discrimination complaint if you believe your dismissal was unlawful.
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