As a lawyer practising exclusively in Plaintiff personal injuries matters, I’m frequently queried by friends, colleagues and even family as to whether any of my clients have turned out to be “dodgy” – or whether any of them have been exposed as a fraud on covert surveillance footage. And yes of course, in a career spanning over 30 years, there will always be a handful of clients who turn out to be less than candid as to their true level of disability from an accident, but they’re a very small cohort – much less than 1% of claimants. But what surprises me somewhat, is how infrequently I’m asked about bad behaviour or dubious conduct on the part the Defendants themselves, and employers in particular. Because in my recent experience in Queensland, there’s probably as much mischief on the part of employers as there is by their employees who suffer injury at work.
The worker’s compensation scheme in Queensland is legislated by the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) – an enactment that articulates the rights and responsibilities of workers as well as those of the insurer and employer. And granted, it’s inarguably one of the most efficient and cost-effective workers compensation schemes in the country, but I reckon it’s still one which could benefit from the oversight of a conscientious policeperson.
Over the years, much has been written about the “dodgy” workers who have been caught with their hands in the proverbial cookie-jar, but rarely do we hear about the misdeeds of the unscrupulous employers who are prepared to go to any length to protect profitability at the expense of employee welfare. Well, I’m not about to name and shame, but here are just a few of the tricks commonly used by unscrupulous corporations and employers.
“They’re a contractor, not an employee”.
The Queensland Workers Compensation scheme recognises the eligibility of “workers”’ to participate – and it’s not the same test as might be used to gauge whether someone is an “employee”. As long as a “salesperson” or “contractor” isn’t performing services as part of a trade or business they conduct, then they will likely be a worker and entitled to benefits if they are injured during the course of their employment. But frequently we encounter situations in which an employer attempts to avoid paying Workcover premiums by calling someone a “contractor” or “consultant” – sometimes requiring them to sign a contract that says so! Just because someone is paid a fixed rate or percentage of revenue, doesn’t mean they can’t be a worker. It’s an old trick of the less reputable employers but fortunately, we are starting to see a bit less of it.
“Don’t make a Workcover claim, we’ll look after you and pay for your treatment ( if you know what’s good for you)”.
It’s a commercial reality that there is a corporate cost to work related injury – not just a Workcover premium adjustment and productivity loss, but in some sectors, loss of bonuses or contract incentives. In industries like mining and construction, injured workers have frequently been discouraged from making a claim – often on the basis that they can do light duties or no duties – as long as they don’t tell Workcover! Similarly in construction, principal contractors often impose work health and safety benchmarks on those they engage, and very often, a “time loss injury” is made out to be more consequential than a viral pandemic! And against this background some employers go to rather extra-ordinary lengths to protect their track record.
But section 133 of the WCRA now requires that employers report any injury to their insurer as soon as they learn of it – and they commit an offence if it isn’t reported within 8 days! It’s an offence that carries up to 50 penalty units. And similarly, section 133A requires an employer to immediately notify their insurer if the worker asks for a payment to be made (such as for treatment) or the employer itself makes a payment. Once again, the penalty for a breach is up to 50 penalty units.
Sadly, there are several national retailers with big brands that seem to be systematically flouting this requirement. I’ve seen any number of instances in which the corporate policy is to pay for the doctor’s visit and some physio, put the worker on light duties, and mums the word! It becomes an even bigger issue for the worker however, when the injury has longer term consequences or later flares up again – because if they didn’t lodge their own application for benefits within the time limit of 6 months, they are then disentitled. I’ve even seen these national retailers who have their own self insurer, reject applications made after 6 months of the injury when the company itself paid for treatment and discouraged the worker making an application for benefits. Sounds outrageous – because it is! Shameful.
“We’re sending your manager with you to your doctor’s appointment so they can sit in to better understand the condition”.
Again, the domain of the sophisticated corporates, but the risk mitigation manual of some organisations now requires that if an employee is injured at work, their manager sits in on their doctors’ appointment. You can imagine the reasoning of the corporate bean-counters and risk managers in coming up with a policy like this, but there is nothing in the WCRA that gives an employer this entitlement. An invasion of privacy? Or just spying? Disgraceful.
“You’re not able to do your job since you were injured, so we’re going to have to let you go”.
Where a work-related injury causes such disability that the worker can no longer fulfill the functional requirements of their role, it can have quite an impact on the enterprise. It’s not just productivity loss, but for smaller employers, hiring a replacement worker to fill a role is a necessary evil – but sometimes they feel the need to firstly “clear the decks” by sacking the injured employee. The WCRA attempts to balance the interests of the employer and employee by providing in section 232B that an injured worker can’t be dismissed solely or mainly because they are not fit for their position, for a period of 12 months following the injury. Sadly, despite this protection, I’ve seen many instances in which smaller employers, either through ignorance or self-interest, have terminated workers who can’t physically do the job they were hired for. It rubs salt into the worker’s wound.
The Queensland Workers’ Compensation scheme is fully funded, well run and stakeholder focused. But I reckon those who throw stones at the occasional worker who gilds the lily, should save a few pebbles for the equal number of employers who behave just as badly.
As published in Australian Lawyers Alliance.
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