NSW Can I Terminate Employee on Workcover?

[lilach]

Hi

I have an employee currently on workers compensation claim. The employee has no intention to come back to our workplace and the doctor recommends to find an alternative work place. I would like to get the employee off my books and have workcover take over the direct payments, since the employee is simply not coming back to our workplace.

I am told by workcover that the employee has a say whether they want the employee to continue to pay them directly. Can I terminate the employee?

Or if anyone can recommend a lawyer that can help in this regard.

Thanks

 

[Rod]

Sorry, I don't know NSW personal injury/workcover laws, but from a Fair Work perspective you need to be very careful.

You say the worker has 'no intention to come back to work'. How do you reach this conclusion?

 

[Clancy]

You should raise these issues with Workcover.

But, what is the urgency to get them off your books anyway? To the extent that you would be willing to have the expense of a lawyer to achieve it?

 

[Owais]

Hi lilach,

Terminating an employee while he/she is on Worker's Compensation can be a complex procedure. It also open's the employer to unfair dismissal claim if not done correctly.

You have to consider many factors before determining whether or not you can terminate the employee. Some factors include the period of leave since the worker first became unfit for employment, the potential capacity to return to work on full or part-time duties, reviewing and understanding medical reports to determine employee's functional capacity.

The procedures are too extensive to be detailed here. My suggestion would be to contact a Worker's Compensation lawyer in New South Wales.

Kind regards

 

[lilach]

Thanks for your input. In reply to Clancy's question, the employee wants to stay on my books just so they can keep accumulating annual and LSL.

This particular employee and their spouse have caused a great deal of trouble to our company and other employees. They are trouble makers and just try to cheat the system into getting paid while sitting at home.

They already had a psych claim rejected by workcover.

I have tried to find a workcover lawyer that defends employers, but was unsuccessful as all the ones I contacted seem to defend employees. I guess there is much more money to be made defending employees.

 

[Clancy]

Thanks for your input. In reply to Clancy's question, the employee wants to stay on my books just so they can keep accumulating annual and LSL.

Section 130 of the Fair Work Act (FWA) provides that an employee is not entitled to take or accrue any leave if the employee is absent from work because of illness or injury for which they are receiving workers compensation payments.

 

[lilach]

thanks Clancy,

Unfortunately this section has a subsection that state that an employee is not prevented from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law.
Case - The case of Anglican Care v NSW Nurses and Midwives' Association [2015] FCAFC 81 concerned an Employer that had not accrued annual leave to a nursing assistant while she was absent and on workers' compensation. When her employment was terminated, she received no payment for any annual leave accrued after her workers' compensation had commenced.

Her union claimed that the provider had breached the Fair Work Act 2009 (Cth) by not accruing annual leave during her absence. The Employer argued that because the state workers compensation law (which in this case, was the NSW Workers Compensation Act) did not expressly provide that employees had an entitlement to take or accrue annual leave when receiving workers' compensation, they did not have to pay annual leave.

But the Court disagreed. Their view was that state workers' compensation laws 'permit' an entitlement if they do not expressly prevent or prohibit it.

In other words, because the NSW Workers Compensation Act does not clearly state that workers' compensation recipients cannot take or accrue annual leave, it must mean that they are permitted to take or accrue that leave.

 

[Clancy]

thanks Clancy,

Unfortunately this section has a subsection that state that an employee is not prevented from taking or accruing leave during a compensation period if the taking or accruing of the leave is permitted by a compensation law.
Case - The case of Anglican Care v NSW Nurses and Midwives' Association [2015] FCAFC 81 concerned an Employer that had not accrued annual leave to a nursing assistant while she was absent and on workers' compensation. When her employment was terminated, she received no payment for any annual leave accrued after her workers' compensation had commenced.

Her union claimed that the provider had breached the Fair Work Act 2009 (Cth) by not accruing annual leave during her absence. The Employer argued that because the state workers compensation law (which in this case, was the NSW Workers Compensation Act) did not expressly provide that employees had an entitlement to take or accrue annual leave when receiving workers' compensation, they did not have to pay annual leave.

But the Court disagreed. Their view was that state workers' compensation laws 'permit' an entitlement if they do not expressly prevent or prohibit it.

In other words, because the NSW Workers Compensation Act does not clearly state that workers' compensation recipients cannot take or accrue annual leave, it must mean that they are permitted to take or accrue that leave.

Check if there have been any updates/amendments to the NSW workers compensation legislation since then? Or send them an email asking them if you are to accrue leave entitlements? If you have it in writing from them that you do not have to accrue it, then dont.

 

[Kbam]

Speak to the insurer who your workcover policy is with ...speaking from Vic...getting them off your books means they will become a direct payee of the insurer ....it’s only done in cases where there’s a structured settlement or the business where they were/are employed folds....in most cases you can sack them after 52 weeks absence from work...it won’t make much of a difference though because their benefits will still be claimed under your policy...how long have they been off work? Doesn’t sound like it’s been very long...I’m surprised the insurer hasn’t stopped payments already...you don’t need a lawyer - a claims agent has 1 goal - deny workcover claims...again in Vic the WIRC Act section 172 refers to the accrual of LSL and annual leave stating the workcover benefits do not cease or reduce upon payment of leave....again in Vic the LSL Act says that with regards to accruing LSL termination doesn’t break continuity of employment when the employer terminates a worker’s employment for the purpose of avoiding payment of LSL...the onus is on the employer to prove they didn’t sack the worker to avoid paying LSL so you might wanna watch out for that one ....I wouldn’t worry too much the workcover system is geared toward the employer not the worker - it’s why you can’t find a lawyer - dodgy claims agents don’t muck around ...