Redundancy and workers compensation

For many people, injury does not mean the end of their working life. Many workers are able to reach an arrangement with their employer that suits both parties, usually involving alternative or light duties.

But what happens to your workers compensation entitlements if you are made redundant or lose your job?

Slater and Gordon Associate Samantha Harvey answers some frequently asked questions to help remove some of the uncertainty around redundancy and workers compensation in NSW.

Q: If I’m made redundant, do my workers compensation benefits become redundant as well?

No. If you are receiving WorkCover benefits and cease working for your employer, your right to compensation is not affected. Ongoing entitlements vary and depend on multiple factors, but generally can include the following:

• Weekly benefits cover loss of earning capacity and are available if your injury has left you incapable of your full duties and/or hours. The amount you are entitled to, and how long payments will last, is set by legislation and depends upon your unique situation.
• Medical expenses can include medical treatment; GP appointments; medications; physiotherapy; rehabilitation; specialist reviews; surgery and artificial aids (for example crutches, walking sticks, artificial limbs, joint replacement, etc). It is very important to seek approval from the insurer before you incur medical expenses, otherwise they may deny responsibility for the cost. Again, how long your entitlement lasts depends on various factors.
• Lump sum compensation can be available if your injury causes a permanent impairment or loss of use or function of a body part. This is subject to thresholds and is separate to your medical expenses and wages entitlement.

Q: What if I’m struggling to find another job after being made redundant?

It can be difficult to find new employment after losing your job, but for those with reduced capacity due to injury, re-entering the workforce can seem almost impossible.

Your previous employer had a legal obligation to provide you with suitable alternative duties, but if you are made redundant, that obligation does not apply to potential new employers. For this reason, you may find yourself in a completely different situation from when you first made your workers compensation claim and you may need to reassess your legal options and entitlements.

Q: What if I failed to lodge a workers compensation claim before I was made redundant?

If you were injured and have not yet lodged a claim for workers compensation, you should do so as soon as possible, even if you no longer work for the same employer.

A Workers Compensation Claim Form will need to be completed and a WorkCover Certificate of Capacity needs to be completed by your GP. This should then be sent to your former employer and it is always a good idea to keep a copy for yourself. Your former employer will then send the claim form to their insurer who will make a preliminary determination within 21 days. Learn more on WorkCover claims.

Generally, a workers compensation claim should be made within six months of the date of injury, but can be lodged up to 3 years later, depending on the circumstances. The claim can still be made after three years if it relates to death or serious permanent impairment if there is a reasonable explanation for the delay. Special circumstances also apply if a worker is not immediately aware of the injury at the time it happened.

Q: Are there any other legal options available?

Negligence/Public Liability

If your employer was negligent in how your injury occurred, then you may have rights against them in addition to those referred to above.

If your employer is not the company or owner of the premises where you were working, you may have rights under public liability law, as well as your workers compensation rights. Situations where this could apply include:

• If your employer is a contractor providing services to another company
• If you are working at the premises of another company or person
• If the employee who is supervising and controlling the work that you do is employed by someone else.

It is very important to note that strict time limits apply in making a claim for an injury that results from the negligence of another party or your employer, so legal advice must be sought without delay.

Income Protection and Superannuation/Total and Permanent Disability

It is also beneficial to check whether you have an insurance policy for income protection. Income protection payments can provide you with a source of income while you look for another job and often this insurance is available through your superannuation policy.

In addition, depending on the level of your injury, you may be entitled to a payment under your superannuation for total and permanent disability.

Unfair Dismissal

When you are made redundant, your employer must provide you with all of your entitlements as provided by your employment agreement or contract, or in accordance with the Minimum Entitlements Scheme.

If you have any concerns or queries as to whether your termination is unfair, it is important to investigate this quickly. Strict time limits apply to unfair dismissal proceedings and generally there is only 21 days after your dismissal to make an application. Learn more on unfair dismissal.