What Can You Do If Employees Make a Workers' Compensation Claim When Being Counselled...
Written on the 30th of May 2011 by Gavin Hanrahan
What Can You Do If Employees Make a Workers' Compensation Claim When Being Counselled For Poor Work Performance?
It is not uncommon for employees to lodge a workers’ compensation claim (usually associated with stress or anxiety) when they are warned for poor work performance or inappropriate conduct in the workplace, particularly if termination of employment is imminent.
While such a tactic may delay the performance management process it does not need to derail it altogether!
In NSW, an employer cannot terminate an employee within 6 months of being injured, if the reason for the termination is due to the employee being on workers’ compensation. However, a person’s employment can be terminated at anytime providing it is for a valid reason and it can be clearly demonstrated that the termination is for a reason unrelated to the employee’s workers’ compensation claim. Eg. a disciplinary matter.
Employees are not entitled to receive workers’ compensation if their injury is a psychological injury and a result of their employer exercising what is commonly referred to as “reasonable management action”.
Section 11A of the NSW Workers’ Compensation Act 1987 states:
Employers still need to be mindful of their workers’ compensation obligations. For example, you could not direct an employee to attend work for the purposes of attending a disciplinary meeting if their treating Doctor has certified them unfit to attend work. However, the disciplinary process should continue as soon as practicable.
Author: Gavin Hanrahan
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