Date last updated

Friday 01 Jun 2018

My worker is not participating in the return to work process

In the vast majority of cases injured workers return to work as soon as they can do so safely.

Returning to work after injury is a crucial part of a worker's rehabilitation and, similar to employers, workers have a number of return to work obligations they must comply with:

  • Make reasonable efforts to return to work in suitable or pre-injury employment.
  • Make reasonable efforts to actively participate and cooperate in planning for their return to work.
  • Actively use an occupational rehabilitation service if provided, and cooperate with the provider of that service.
  • Actively participate and cooperate in assessments of their capacity for work, rehabilitation progress or future employment prospects.
  • Actively participate and cooperate with the WorkSafe agent in an interview to enhance their opportunities to return to work.

If you believe that your worker is not complying with their return to work obligations, talk to them. They may have a very good reason for this. Remember: good, early communication makes most issues go away.

Talking with your worker may help shed light on the 'reasonableness' of any perceived or actual non-compliance. Talk about:

  • their ability to travel to and from work or appointments
  • changes in medication
  • changes in work capacity
  • relationships with individuals involved in the return to work process
  • ability to perform agreed return to work arrangements
  • issues/concerns the worker has.

If you still believe after your discussion that the worker is unreasonably not complying with their return to work obligations, talk to your agent about your concerns.

Your agent will most likely contact your worker and try to better understand the worker's rationale for not complying and resolve the issue where possible. After this step, if the worker is still deemed to be non-compliant, your agent may suspend your worker's weekly payments and may progress to terminating them if the worker continues not to comply.

Steps your agent will take

Your agent will undertake the following steps when managing a worker who is not making reasonable efforts to participate in the return to work process.

Each step is individual and the process may stop at any time based on worker activity/contact.

1. Contact the worker

Contact the worker to discuss return to work obligations and the worker's perceived/actual non-compliance:

  • if the agent then forms the opinion that the worker is unreasonably being non-compliant with their obligations, the agent will proceed to issue a warning of possible suspension of weekly payments

2. Issue a warning notice

Issue a warning notice for a period of 14 to 60 days clearly outlining what the worker needs to do to demonstrate compliance with their RTW obligations

3. The agent may suspend payments

Following the warning period, the agent will contact the worker.

  • If the agent forms the view that the worker is still not complying with their RTW obligations the agent can suspend weekly payments for 28 days

4. The agent may terminate payments

Following the suspension period, the agent will contact the worker:

  • if the agent forms the view that the worker is still not complying with their obligations they can terminate weekly payments
  • In some situations, a notice can be issued seeking to cease and determine weekly payments so that weekly payments are no longer payable on the claim at all. This is a big steps and it is up to the agent to determine whether the worker's non-compliance meets this criteria.

It’s important that you meet your own return to work obligations

It's important to note that it will generally not be reasonable for a worker to be deemed as non-compliant if you, as their employer, have not met your own return to work obligations.

This principle applies even in situations where you believe or know that your worker is not meeting the own return to work obligations.

Your agent will manage your worker's return to work non-compliance, just keep them informed if there is something it would be useful for them to know.