Unfair dismissal and workers compensation payments

Workers compensation payments received after a termination of employment will be regarded as income received for the purposes of calculating compensation for unfair dismissal.

“Remuneration earned: s.392(2)(e)

The Applicant’s evidence establishes that she has been in receipt of weekly workers’ compensation payments from 28 August 2020 in the amount of $865.68 per week which is equal to her fortnightly pay had she remained in employment. The Applicant continued to receive those payments at the point her application was heard and was still receiving this amount on 3 September 2021, being the date the Applicant gave her supplementary statement. The Applicant’s evidence also establishes that she will continue to receive workers’ compensation payments in this amount until 19 August 2022, unless the Applicant is fit to resume work before that date, whereupon her workers’ compensation payments will cease. If the Applicant remains unfit for work on 19 August 2022, she will continue to receive workers’ compensation payments based on a lesser amount after that date.

Consistent with the Decision of the Full Bench of the Commission in Sprigg v Paul’s Licensed Festival Supermarket 23 workers compensation payments are considered as moneys earned since termination and are deducted from remuneration that would have been received had the Applicant remained in employment for the estimated period determined for the purposes of s. 392(2)(c). Having regard to the workers compensation payments received by the Applicant, the total amount of remuneration received between the date of dismissal and the making of an order (if an order was made as a result of this Decision) is estimated as $23,836.08 (37 weeks at $865.68). This amount is equal to the amount determined as the remuneration the Applicant would have received if she had not been dismissed.

Had the Applicant not been dismissed, she would also have been entitled to receive superannuation contributions by virtue of clause 20.5 of the Clerks Private Sector Award. The Applicant did not receive superannuation contributions after her dismissal on 22 February 2021. Accordingly, her lost remuneration for the estimated period she would have remained in employment is $2,264.42 in superannuation contributions to which she would have been entitled.”

Brittain v Teewah Power Co Pty Ltd – [2021] FWC 5451 – 15 November 2021 – Asbury DP