In this Bulletin we look at Workers Compensation claims which arise as a result of a worker claiming that they are ‘stressed’.
Whilst compensation laws allow for compensation with regard to a work related stress condition if the claim arises from reasonable ‘disciplinary action’ then recourse to compensation may be limited.
Reasonable action may include holding a meeting to discuss a legitimate performance issue. As in our previous article it is critical that minutes and notes of these sorts of meetings are kept as an accurate record of proceedings and which may be relied on in support of any claim rebuttal required at some later date.
Whilst it appears to be a relatively straightforward matter to take sick leave in relation to a claim of stress – evidenced by a Medical Certificate – Workers Compensation Claims are generally subject to a higher level of due diligence by insurance companies.
Under Workers Compensation legislation it is an offence to dismiss a worker because they have taken steps to lodge a Workers Compensation claim. Whilst there is no general obligation to provide alternative or ‘light’ duties for an employee on sick leave this is not the case with Workers Compensation.
Employers should be mindful at all times that up until the insurer accepts the claim a worker is on ‘sick leave’. This is important as employers may pay workers without an ability to be recompensed if they treat an injury or claim as bona fide before official acceptance by the insurer.
The requirement to provide alternative duties to a worker on an accepted claim has certain conditions:
- The employee’s medical practitioner has indicated that the employee has the capacity to return to work with or without restrictions;
- The provision of these duties would not impose unjustifiable hardship ie
- Disadvantage the employer or other employees
- Add additional costs to the employer
- The extent to which the employee’s position caused the employee’s stress condition
- The sustainability of any return to work plan – will alternative duties actually assist the employee to resume full duties?
- The number of other employees working on a restricted basis
- The length of service of the employee concerned
- The employee’s potential to find suitable employment elsewhere
Under current legislation you will usually be required to hold the employee’s pre injury position open during the first 12 months they are receiving payments. At the end of 12 months you have the option to:
- Return the employee to work in their former position on a restricted basis
- Return the employee to work in an equivalent position possibly also on a restricted basis.
Further questions? Call us to discuss your rights and obligations.