NSW Can Claiming Workcover be a Reason Not to Employ Someone?

[Cjg123]

My question relates to NSW/ACT employment following a WorkCover claim. Can an employer ask you if you have made any claims and can they use this as a reason to not employ you?

My husband was involved in a fatal RTC last year where a motorcyclist used his truck to commit suicide. All investigations have concluded with the same result - that my husband did all he could and wasn't at fault. However it seems that the workcover claim he subsequently made is preventing him from getting alternative employment despite undertaking retraining.

He's volunteered the information during interview and another time didn't mention it during the interview but had to disclose it on application form he completed post successful interview and references.

It was a NSW workcover claim but he is applying for jobs in NSW and ACT.

 

[Sophea]

Hi Cjg123,

Whilst a prospective employer may not want to employ someone who has suffered a prior workplace injury, they are generally prohibited from discriminating against someone with a prior workers comp claim.

Under the Federal Fair Work legislation, an employer cannot refuse to employ someone if they have exercised a 'workplace right' - which includes lodgement of a workers compensation claim. Therefore, employers need to be careful when refusing to hire someone based on their previous claims history.

However, an employer can refuse to employ someone with a prior injury claim if that specific injury would prevent them performing the 'inherent requirements' of the job - for example manual heavy labour. Therefore, it will depend on the specific circumstances of each case as to whether discrimination on the basis of a prior claim has occurred and even when it has it can be difficult to prove.

 

[Cjg123]

Unfortunately the application form simply asked if you had had a workers compensation claim and didn't frame the question 'have you had a workplace compensation claim/injury in the last x years that would prevent you from performing this role'.

 

[Sophea]

I guess you could always provide that extra information when asked. But yes this is the frustrating situation faced by many workers compensation claimants unfortunately. I'm sure you will find a good employer out there who will look past your claims history and give you a fair go.