View Full Version : Workers Comp - can we replace the employee or hire into the vacant role?

19-09-2012, 04:55 PM
We have an emp on workers comp, it is now 8 weeks and at least 4-6 more ahead.

To complicate this:
(1) the emp had only been with us 3 months and had a perf review highlighting areas for improvement
(2) it was likely they would have been terminated at 6 months, however the accident happened at approx the 4 month mark
....I guess that is all academic now.

The main problem here is that we are a small business and need someone to fill this vacant role urgently! What do we do? Can we employ someone else? Do we employ someone as Casual or Contract so that if the emp returns we are not stuck with 2 people in the same role?

The insurance company is giving us no answers, and we have a job to do!!! :confused:

20-09-2012, 08:17 AM
After the horse has bolted as they say!! but if there are performance issues, you now know to deal with them promptly in future - never ever wait six months!.
Have seen a few chronic abusers of WC - not saying this guy's "accident" isn't real but...

I have a lot of sympathy for you on this one. You have a job to do as you say so put someone temporarily into the role to do that job. If you don't have anyone internally who can step up, then you need to go outside. You can either

a) go to an agency (or labor hire company) and get them to provide someone for the duration - this way they are not on your books but are paid by the agency or labor hire coy. You will however, pay a slight premium for this (agency's fee).

b) hire a temporary person direct on a fixed term contract. Make the fixed term an initial period of say 4 or 6 weeks with provision to extend it should your WC guy not return in the 4-6 wks you anticipate. This way you are paying person direct and he is entitled to pro rata P/H payment and leave. For four weeks, that's 1.66 days of A/L so unlikely to break the bank. Make sure it is in writing.

c) alternatively put someone on as a casual - again they are on your payroll but instead of being entitled to pro-rata leave and P/H entitlements, you pay them a loading in lieu.

Depending on the nature of the job, I'd be inclined to go with Labor Hire option, that is far less complicated (I'm assuming the job is blue collar?) as person remains employee of the Agency/Labor Hire company.

Keep in mind that your WC guy might string his absence out and may even end up returning in "light duties" (ie can't return to his actual job for a longer time) which means you could end up needing your temporary fill in longer than you think. In this case, hiring a casual might be the best option because the hours could change?

Whichever option you choose, just be sure the 'temp' is aware that longevity in the job is dependent on your employee returning as fit for duty so the time frame could be rubbery.

20-09-2012, 08:17 AM

Ahh the dreaded performance review and the workers comp way out!! Have seen so many of those over the years. You don't mention what type of injury or how small your company is so its hard to give specific advice. Was the claim accepted on your part? I would say depending on the injury get an IMA (Independent Medical Advisor) for a second opinion. You also as the employer have the right to get as much info from the employees doctor (when can we expect a date of return and if so, same duties/different etc). The misconception most employers have is they think they cannot performance manage anyone on WC. I will admit it does become blurred but this is still possible if not necessary - the employee still has a duty to perform their work satisfactorily regardless. If the company was negligent on safety then those duties may change but you can still performance manage. My advice at this stage would be to get a temp/contractor in the immediate term and get this worker back as soon as possible. Then you start the performance process where you left off. Ultimately if they are not performing you then can performance manage them out ensuring you give adequate feedback and advice on ways to improve within the Minimum Employment Period if this applies to you (again depending on the size of your company) ensuring the reasons for termination are performance based rather than anything to do with the injury or anything unlawful as these can possibly still be challenged. Also, I am not surprised your insurance company is unhelpful as there is also a 6 month period for WC where you cannot terminate before this period. Hope this helps.

20-09-2012, 09:47 AM
Thx for your replies. A bit more information: The worker is a Supervisor hence the need to replace, and the difficulty in hiring a temp for the role. We are only a small company of 9, so each role is key. Office staff and most blue collar staff can be temped, but a Supervisory role is a little more difficult.
The accident was genuine and was a fall so the time off is legitimate though at this stage also seemingly indefinite. Injuries were cracked bones, not severe but include 2 vertebrae.
What is the 6 month period for WC where you cannot terminate? Is this after they return?
It will be relatively easy to performance manage upon return, there were repeated mistakes being made, I cant see these getting any better.
The phased return work issue is another one....we have no light duties! We have construction sites!
We are so regretting not terminating earlier :( It is always easier in hindsight.

20-09-2012, 02:17 PM
It depends on what State you are in. It ranges from 3 months to 12 months which basically means you cannot terminate within that time period and as for suitable duties most states require you to offer suitable employment to an injured worker but you are not required to "create a job" for the sake of it.

After the minimum time has passed you can consider terminating the employee but it is strongly advised you obtain legal advice to ensure that it is an appropriate decision. For example, obtaining sound medical advice that the employee is incapacitated for their duties and you can demonstrate that they are unable to perform the job they were employed to perform. You must also give the employee an opportunity to respond to the allegation that they are unfit for their duties AND to the intention to terminate their employment. Also even though your company consists of 9 employees the MEP does not apply BUT under the Fair Work Act you will still need to comply with any General Protections ,Unlawful or Discrimination Legislation as the onus of proof will be on you as the company not the employee. As for a temp/casual their are some specialist agencies within the construction business that may be able to provide you with a short term Supervisor to fill in until you are in a better position to make an informed decision. Also, please ensure any person you hire temporarily understands it is an indefinite assignment or fixed term contract (whichever way you decide to go). The last thing you need is another Unfair Contract issue on your hands!

Good Luck. I know how hard it is to deal with these kinds of issues.

20-09-2012, 03:47 PM
Last time I looked at this it was - In NSW, the time frame is 6 months from date of injury.

20-09-2012, 09:58 PM
We are in WA.
Thx for Ur advice.
Yes I agree that I think we will need legal advice for every move we make, it is a potential minefield isn't it?!

20-09-2012, 10:53 PM
Unfortunately for WA the minimum period is 12 months and any pre-injury return to work duties must be as close as reasonably possible to the pre-injury job? Sorry to be the bearer of bad news but you need to seek expert WC Legal Advice ASAP.

Good luck.

21-09-2012, 09:55 AM
Yes I agree that I think we will need legal advice for every move we make, it is a potential minefield isn't it?!

It's a sad state of affairs when employment legislation is so complex and/or unclear, that we are forced to continually seek legal advice. Nice earner for the lawyers, but then most of our politicians are ex lawyers so they wouldn't have a problem with it.

21-09-2012, 04:43 PM
I am still trying to get my head around that fact that a worker we have only had for 3 months, that did not even pass their 6 mths probation (as written into their contract), now looks set to remain another 12 months whether we like it or not....wtf

21-09-2012, 09:57 PM
True - But the fact remains that the worker was injured on your premises. That is the way the current system works at the moment so until anything changes then under WC Legislation the company will be held responsible for this workers accident. Perhaps you can look into things like was he/she following proper safety procedures (harness, heights etc)? Because you only have 9 staff perhaps there is a way around it - seeking specialist advice is my recommendation.

21-09-2012, 11:12 PM
True - But the fact remains that the worker was injured on your premises.

Sorry tubefeed, but I was thinking exactly the same thing. If you think about it, it's fair. The guy was injured while working for you so you should be responsible for him until he is fit to work in the same capacity elsewhere.

Just keep your fingers crossed and hope he makes a full recovery, because back injuries can go on ad infinitum.

I used to live next door to a guy who injured his back at work when he was in his early fifties and he never worked again!

22-09-2012, 10:58 AM
Yes I am sorry if I sound like I don't care, I do. I have been looking t it from a clinical point f view on this forum to try to understand how the system works.
I genuinely hope he recovers well. As a footnote, the liability for the accident is not our companies, but another company who tampered with the scaffold making it unsafe.
This is obviously subject to an investigation and does not help us as the employer, or change the fact that the worker has sustained injuries and now needs to recover.
I guess a lot of my frustration is with the 'unknown'. That is, when will he return, what will apen next, etc...the insurance comany are quite frugal with their advice, and in the meantime we are understaffed and spread very thin. A situation that is creating a lot stress across the rest of the team.

22-09-2012, 05:07 PM
I don't think you sound like you don't care - you are obviously frustrated and I can totally understand. You don't have the luxury of staffing as a bigger company would. The unknown is the most frustrating part and unfortunately your insurance company is probably not in any better position to give you any answers. The best thing you can do is to get as much information about this employees injury and an expected return to work date (shouldn't be too difficult if you have a cooperative doctor) and most doctors are happy to provide this as long as you have the workers consent to release medical information again not difficult if it is a legitimate injury. Approach an agency in the construction business to provide you with someone so this frees up your time and energy into getting this worker either back to work or out of your company.