An updated version of this blog can be found here.
Clients often tell us of their frustration and struggles gaining employment after prospective employers have found out about a previous workplace injury and workers compensation claim.
There are many reasons why employers are hesitant about employing people who have previously claimed workers compensation under the South Australian Return to Work Scheme or the federal Comcare laws. The primary reason stems from a concern that a worker who has previously submitted workers compensation claims is at an increased risk of aggravating their pre-existing injury while employed in their new role.
"Although many employers may not wish to employ someone who has previously suffered a workplace injury, they are generally not allowed to discriminate against someone who has previously made a workers compensation claim."
Although it seems entirely unfair, employers do not want to inherit an existing injury when they hire a new employee. Even a slight aggravation of a pre-existing workplace injury will likely become the financial liability of the new employer.
But although many employers may not wish to employ someone who has previously suffered a workplace injury, they are generally not allowed to discriminate against someone who has previously made a workers compensation claim.
An employer commits 'adverse action' under the Federal Fair Work legislation if they refuse to employ someone if that prospective employee has exercised a 'workplace right'.
Lodgement of a workers compensation claim is a legitimate 'workplace right' therefore, employers need to exercise caution before refusing to hire someone because of their previous workers compensation claims history.
Any employer will, however, not be guilty of adverse action if they refuse to employ someone suffering from a workplace injury (or even a non-workplace injury) if that specific injury prevents the worker from performing the 'inherent requirements' of the job.
For example, if a worker had previously lodged a workers compensation claim for an injury to their lower back, an employer may be able to legally discriminate against that person if the specific job requires a significant amount of heavy lifting or manual labour. The employer could argue that the worker is unable to perform the 'inherent requirements' of the job due to their previous back injury.
Of course, it is not always as straightforward as the above example. The previous back injury may have only been minor or it may have occurred many years ago and the worker had completely recovered from that injury when they applied for the new job. If this is the case, then arguably the previous back injury has no bearing on the worker’s ability to perform the role, and there may be legal risks to an employer who discriminates against a worker in that type of scenario.
"Many existing employees often feel that they have been the subject of severe discrimination and victimisation following lodgement of a workers compensation claim."
Prospective workers are not the only people who may feel that have been discriminated against as a result of a workplace injury. Many existing employees often feel that they have been the subject of severe discrimination and victimisation following lodgement of a workers compensation claim. Workers often feel they lose the opportunity for career advancement and colleagues/management suddenly start treating them differently. This treatment can be contrary to the Fair Work legislation.
If you are a worker or prospective worker and you feel you have been discriminated against because of your work related injury or your previous workers compensation claim, you should seek legal advice about your workplace rights and entitlements.