The question we hear before "how much" is "will I lose my job". It is a reasonable fear, and the answer in Queensland is that the law gives injured workers real protection, with clear limits. Knowing the shape of it lets you make the claim you are entitled to without guessing at the consequences.

Key points

  • An employer cannot dismiss you for making a claim, or because of the injury within 12 months of it.
  • Both you and your employer must take part in return to work; suitable duties must be provided where reasonably practicable.
  • Breaches can go to the Industrial Relations Commission for reinstatement, or the Fair Work Commission within 21 days.

You cannot be dismissed for claiming

The Workers' Compensation and Rehabilitation Act makes it an offence for an employer to dismiss a worker because they have made a claim, or to threaten to. The scheme is funded by employers' premiums precisely so that an injured worker's compensation is not a cost the employer can avoid by ending the employment.

You cannot be dismissed because of the injury for 12 months

Separately, an employer must not dismiss a worker solely or mainly because the worker is not fit for employment as a result of a work injury, within 12 months of the injury. The employer's remedy during that year is to provide suitable duties and to take part in return to work, not to replace you. A dismissal in breach of this is an offence, and the worker can apply to the Industrial Relations Commission for reinstatement.

Your employer must help you return

Both you and your employer are required to participate in rehabilitation and return to work. The employer must provide suitable duties where it is reasonably practicable to do so, consistent with your work capacity certificate, and must have a return-to-work plan. Refusing to offer suitable duties that exist is a breach; so is offering duties outside what the certificate permits and then treating a refusal as misconduct.

The limits

The protection is not absolute. After 12 months, an employer may end the employment where the worker genuinely cannot perform the inherent requirements of the role and no reasonable adjustment is available, subject to the general protections in the Fair Work Act, which prohibit adverse action because a person has exercised a workplace right or because of a disability. A worker who is dismissed for reasons unrelated to the injury, such as a genuine redundancy, is in the same position as any other worker. And a worker who is dishonest about their capacity is not protected.

If your employer breaches it

A dismissal within the 12 months, or a dismissal for claiming, can be taken to the Industrial Relations Commission, which can order reinstatement, and the employer can be prosecuted. Adverse action, demotion, a cut in hours, or a hostile response to the claim, can be a general protections matter under the Fair Work Act, which has a 21-day time limit for dismissal claims. Get advice quickly; these deadlines are short.

Will making a claim affect a damages claim?

No. The statutory claim is the gateway to a damages claim, not an obstacle to it. What does affect the damages claim is the record: a worker who reported promptly, treated consistently and took part in return to work presents far better than one who did not.

Frequently asked questions

Can I be sacked while on WorkCover in Queensland? Not because of the injury within 12 months, and never for making a claim. After 12 months a dismissal must still comply with general protections and unfair dismissal law.

Does my employer have to give me light duties? Where it is reasonably practicable and consistent with your work capacity certificate, yes, as part of return to work.

Will claiming affect my chances of a damages claim? No. The statutory claim is the gateway to a damages claim, and a good record of reporting and return to work strengthens it.

Sources

  • Workers' Compensation and Rehabilitation Act 2003 (Qld), Chapter 4 (rehabilitation and return to work; employer's obligation to provide suitable duties), ss 232A–232C (dismissal because of a claim or within 12 months of injury; reinstatement) — legislation.qld.gov.au
  • Fair Work Act 2009 (Cth), Part 3-1 (general protections), s 366 (21-day time limit) — legislation.gov.au
  • WorkSafe Queensland, Return to work — worksafe.qld.gov.au