For those who are covered by the “Comcare Scheme”; Commonwealth employers and self-insurers under the scheme.
This guide is written for those who are covered by the “Comcare scheme”; i.e. employees of Commonwealth agencies and self- insurers under the scheme.
Every workplace conflict and injury is different because every person is an individual. Conflicts and injuries at work arise from a wide range of reasons but there are common mistakes made; usually early on.
At Lander & Co we have helped hundreds of employees. The following are the most common mistakes that we see.
If you like what you read and want to know more or have a workplace issue that you need help with please contact us at Lander and Co (02) 62549122 or [email protected] or visit our website www.landerandco.com.au
Doing nothing or thinking the situation will “go away” by itself
We are often contacted by people asking for advice or assistance who have very serious problems or injuries caused by a workplace situation which has escalated far beyond their control. By the time that they contact us, there are usually only two options left, lodge an application for workers compensation and/or leave the workplace. When asked, we are usually told that they thought it (or they) would get better.
When you are working when distressed or injured, you are not in a “good headspace” and you are not performing at your best. Additionally, if you are in conflict with your employer, there is usually a problem with the relationship of trust between you.
Sadly, this often leads to performance management or code of conduct proceedings which in the long run leads to disciplinary action, often involving a dismissal. The law is complex. Once the situation reaches this stage, your chances of a successful outcome are significantly reduced.
Don’t wait until things reach this point! Seek legal help early!
Taking action without a well-developed strategy
Employment law is complicated! This is why your employer likely has an employment lawyer on speed dial!
For each problem that an employee encounters there are often a number of possible actions that can be taken such as:
- Fight any decisions internally;
- Make a worker’s compensation claim;
- Make a Fair Work Commission application to stop bullying and harassment or unfair dismissal;
- Take a voluntary redundancy;
- Make a Federal Court Application for a breach of the general protections provisions; or
- Make a Public Interest Disclosure Statement
These are just a few of the more common actions! In addition, quite often there will be a number of different actions running concurrently.
The first decision about what you are going to do is the most important decision that you will make, and the easiest to get wrong! Each step that you take will impact the other steps that are available down the track. If you rush into one particular pathway without first seeking advice, you may miss out on taking a different approach which may have resulted in a better outcome.
Get help with your strategy early on!
Missing important deadlines
Although it is important to get your strategy right, you need to be careful that you do not miss important deadlines.
Take note of any deadlines outlined in your employer’s correspondence with you and educate yourself on whether there is any capacity to request to extend the deadline.
In many areas of employment law (such as when lodging applications with the Fair Work Commission and the Administrative Appeals Tribunal), there are absolute or strict deadlines for lodging applications and obtaining extensions of time is difficult. Don’t put yourself in this situation and if you do not know how long you have in which to lodge an application, find out!
Educate yourself on your deadlines by talking to a professional!
Assuming that their HR Department or employer will protect them
Your HR Department exists to protect your employer. Anybody who works in HR is paid by your employer, even if they genuinely want to help. Some HR representatives have a far better grasp on the law than others. Take any advice given to you with a “grain of salt” and exercise your own judgement. Seek professional, independent advice.
If you are in conflict with another employee, it is likely that your employer will end up needing to side with one person. Can you be certain that the person that they will protect will be you? We do not suggest that you become paranoid about your employer’s intentions, but you should again exercise judgement.
Seek advice from someone who is actually on your side and preferably a professional who specialises in the area!
Do not keep good records
Most employment disputes come down to a “he or she said” situation. At this point, if you do not have witnesses to back you up, the records that you keep are the only evidence you have that what you say happened. Keep contemporaneous notes and make them clear!
The minute that you enter a conflict with your employer, keep a diary. There are no hard and fast rules in relation to what form this diary takes, but we would recommend that you keep a hard copy diary in a notebook or some similar format. If you prefer to type, a really good way to proceed is to send yourself an email (to your personal email address) with your file note recording what has happened because it is proof of when you drafted it and when you sent the email.
Keeping electronic records of what is happening at work on your employer’s computer is risky. Systems can go down and the documents can be lost. Your employer can view the documents or your emails which might not be in your best interests. If you are no longer at work because of injury or a suspension you might lose access to these documents. For this reason, if you absolutely must keep your electronic documents at work, print yourself a hard copy as well.
Keep contemporaneous clear records and always keep a hard copy!
Failing to take a good support person to meetings
If you are in any performance management or code of conduct proceedings, you need to insist on your right to have your choice of support person attend any meetings with you.
We recommend that you choose someone who is from a different work area and if you are a member of the union, a union member. Whilst it would be nice to take a lawyer, it is probably not cost-effective to do so.
You should choose someone who is articulate and not easily intimidated because they will likely act as your witnesses to what occurred in this meeting in the future. They should take contemporaneous notes of the meeting and retain them, even if they are told that they are not allowed to advocate on your behalf. Ask for a copy of these notes.
After the meeting, you should ask your employer for a copy of the minutes to be sent to both you and your support person via email. If your employer refuses to give you a copy of the notes, record this in your diary. You and your support person should then email any changes or clarifications (based on the notes that your support person took or your independent recollections) to the employer. Print a copy of all of this correspondence. All documentation can then be used as evidence in the future if your employer takes a different view of the meeting to you.
Choose your support person wisely and make sure that they keep good notes!
Complaining about the rehabilitation or compensation processes
This tip is just for those of you with workers compensation claims.
The Act which governs workers compensation in this jurisdiction says that any injury caused by the rehabilitation or compensation process is not compensable. End of story.
Even if your employer or your insurer completely stuffs up your claim, or the doctor who examined you was awful you should resist the urge to say that this injured you or made your injury worse. Your employer or the insurer will likely be unmoved to make any changes and may then argue that your workplace injury has been superseded by a non-compensable one. The end result will be no (more) compensation. Don’t do it! It is ok to point out flaws in the process, but you must be careful that you do not say (in whatever language) that you have been injured as a result.
Be very careful what you say about the rehabilitation or compensation process!
Delay seeking medical help until it is too late
Often, people don’t seek medical help because they do not want to “give in” or think “it will get better” (see mistake #1!). Maybe they do not realise that they are injured.
We regularly see people who had a good claim initially but worked through their illness and did not seek help until it was too late. As well as leading to the problems that we covered in mistake number 1, what this means is that there is no medical evidence that you were injured until a much later date. It can mean that your chances of success from a legal perspective are seriously diminished.
From a personal perspective, it will mean that your injury is likely to become far more serious and entrenched because you are not receiving the medical help needed.
Protect yourself. If you feel distressed because of work, go and see your GP as soon as possible!
Posting on social media without thinking through the consequences first
Assume that anything that you post on social media can and will be used against you. Do not post anything that can be taken out of context. Preferably, say nothing or even better, refrain from using social media at all!
An example that we have seen many times is that someone takes a photograph because it represents some sort of achievement or the injured worker wanted to feel normal for just a minute. That photograph is then used against them. What the decision-maker doesn’t see is that following the photograph that person was crying in pain or fell out with their partner or whatever. It is difficult to argue the context of a later date and safer to totally avoid the problem.
Cases have been lost based on evidence found on social media sites.
Be careful what you post on social media!
Calling everything “bullying and harassment”
“Bullying and harassment” is a phrase that is used (incorrectly) to describe a huge range of different issues and is often overused. It is a phrase which has a specific legal meaning and often what people call “bullying and harassment” does not fit the legal definition.
Because the term is so broad, we recommend that you be far more specific in any descriptions that you provide of your predicament. The first question that we always have to ask our clients when they tell us that their injury was caused by “bullying and harassment” is what they mean, because the phrase does not tell us anything useful.
For example, are you talking about being performance managed unfairly or are you being singled out by a supervisor in response to making a complaint… the possibilities are endless? Was the behaviour repeated or a “one-off”? Try to articulate as best you can what form this “bullying and harassment” take because when we are trying to unravel the evidence later on it becomes difficult to prove what it was you were actually complaining about.
If possible, please ask your treating provider to be specific on any medical certificates as well.
Be specific, accurate and factual when you identify what your problem is!
This article is written by Katie Hrobelko and was first published on Lander and Co.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.