Published: 28 February 2019
Author: Simone Welsh - Accredited Specialist in Personal Injury Law, with Jessica Steele
Redundancy: will an 'exit medical' affect my WorkCover claim?
You might be facing redundancy and have been asked to sit an “exit medical” by your employer.
Do you have to comply? And if you do, will it jeopardise any future WorkCover claim? Can you be made redundant while on WorkCover?
These are questions that have been asked of us by members of the National Union of Workers.
Here is what you need to know.
The increasing threat of redundancy
The manufacturing landscape continues to change, leading to ever-evolving challenges for workers. Automated distribution centres are becoming a new industry norm, often cropping up in areas distant to traditional manufacturing centres. With the closing of existing facilities, downsizing workforces and increased travel time, we expect to see some manufacturing sites offering mass redundancies to its workers.
Ryan Carlisle Thomas and the National Union of Workers (‘NUW’) recommend that workers be on the lookout for the following potential issues which can adversely impact on their WorkCover compensation entitlements:
Some NUW members have sought advice from RCT about the employer’s requirement for workers who accept a redundancy package to attend an ‘exit medical’ to establish fitness to leave work.
There is no legal obligation on a worker who accepts a redundancy or is otherwise terminated from employment to attend an exit medical. Our concern is that the results from an ‘exit medical’ may be used by the employer to thwart any WorkCover claim lodged by a worker after they have accepted their redundancy.
The WorkCover legislation requires that a worker sustain an injury ‘out of or in the course of employment’. If an exit medical therefore clears a worker of any work-related injury, but the worker later submits a WorkCover claim for aggravation of a pre-existing medical condition such as a bad back, this is likely to result in the WorkCover claim being rejected. This means an injured worker will have no entitlement to weekly payments or medical expenses, nor lump sum compensation.
What a redundancy will mean to you
1. If you suffer an injury or an aggravation of an existing injury in the course of your employment, you must inform your employer and submit a Worker’s Injury Claim Form as soon as possible.
2. If you are on a ‘Return to Work Plan’, your employer is legally obliged to maintain a position for you and enable you to return to work within your physical limitations and restrictions, for the first 52 weeks post-injury. This means that your employer cannot hire another worker to replace you permanently within this time period.
3. While your employer is entitled to make you redundant while you are on weekly payments or a ‘Return to Work Plan’, they cannot target you specifically for redundancy based on your WorkCover claim. If you are on a ‘Return to Work Plan’, and your workplace is undergoing structural changes and redundancies are likely, it is recommended you obtain independent legal advice to clarify your rights and entitlements in this respect.
4. If you have suffered a workplace injury and are yet to return to work, you can continue to receive weekly payments, and accept a redundancy package. Your weekly payments will not be lessened or otherwise affected by the redundancy payment.
5. WorkCover benefits cover not only weekly payments, but also reasonable medical expenses, which can include costly surgeries if required, and also ‘rehabilitation’ expenses, which can include retraining to assist you to move into a new role or industry.
Ryan Carlisle Thomas, together with Stringer Clark, is the Victorian legal partner for the National Union of Workers. NUW members who are interested in discussing their matter should speak with NUW Assist for a referral on 1300 275 689.
For further information about how a redundancy may affect you, or to discuss your potential rights and entitlements, contact our office on 1800 641 743 or firstname.lastname@example.org for a confidential and obligation-free appointment at no cost to you.