Many workers who are on workers compensation, feel that they are not receiving appropriate support from their employer to assist with their rehabilitation. In fact, many injured workers feel that the attitude of their bosses and even colleagues is hindering their rehabilitation efforts.
It may seem 'easier' for an injured worker to quit employment if there has been a breakdown in the employee-employer relationship. However, resignation from employment can be considered a "breach of mutuality" under the workers compensation legislation which could render the worker ineligible to receive workers compensation weekly payments (known as income maintenance).
How resignation affects workers compensation entitlements?
Resignation can affect a worker's entitlement to weekly payments even if a worker thinks they have no choice but to resign because of their incapacities, or they feel they are a burden on their employer as a result of their injuries.
Under the Return to Work legislation both workers and employers have an obligation to maintain the employment relationship. Therefore, a resignation can be viewed as a breach of a worker's legal obligations. As a result, if a worker decides to resign, their weekly income maintenance payments can be discontinued.
Will resignation from work impact other entitlements, like medical expenses and lump sum payments?
Even though it may affect an injured worker's income maintenance payments, a resignation from employment does not impact other rights under the workers compensation legislation, including the right to have reasonable medical expenses reimbursed, or an entitlement to receive lump-sum compensation for permanent impairment.
What if the worker has another job to go to?
If an injured worker has been offered a new job elsewhere in order to accept that job the worker would have to resign from the pre-injury employment. This would technically breach the worker's obligation to maintain the employment relationship with the pre-injury employer. This will not be an issue if the new job pays more than the Average Weekly Earnings rate calculated for the purposes of the workers compensation claim. However, if the new job pays less than the Average Weekly Earnings rate the worker’s resignation could mean that the worker is not entitled to receive any "top up" payments of income maintenance.
This is a complex area of workers compensation law, and if you are in this situation – that is, you have a workers compensation claim and want to resign from employment with the pre-injury employment to accept a different job, we advise that you seek legal advice.
Difference between resignation and termination under workers compensation law
It is important to note that a "resignation" from employment is treated very differently than a "termination" instigated by the employer under workers compensation law. If an employer does terminate a worker without following certain procedural steps, the worker may be entitled to pursue a claim against that employer. Workers should seek urgent legal advice following a termination, because a pursuit of a claim, particularly a claim for unfair dismissal, needs to occur very quickly after the termination take effect.
The "take home message" is that if you have a workers compensation claim, a resignation can have serious implications for your entitlements, so you should seek legal advice before resigning.