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Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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I have some questions which relate to workcover and to employment

Customer Question

I have some questions which relate to workcover and to employment issues.
Last November Ihad a staff member put in a Workcover claim for bullying resulting in stress and anxiety. The matter was both investigated by workcover and by my company. Workcover picked up her claim due to her mental state. My company investigated and I was not found to be intentionally bullying this staff member but i was reprimanded with a counselling over the way I spoke to her. I have accepted the fact that what I did was not right and my comapny has still employed me in the same role.
Over the four years she has been working under me I have had to constantly pull her up about numerous things andas I have got to know her she has also constantly lied about things and is always telling different stories about the same thing.
My position in the company is a HR and Admin manager role. I know the ins and out about Workcover and what happens when people claim to helping people return to work etc, so I know what is involved.
This staff member has been off work for seven months and as my company head office has not dealt with this claim in a prompt manner, Workcover are requesting mediation to see if this staff member can return to work in the same environment as before. I understand that this has to be done due to legal ramifications for the company. We have offered her aposition else where in the store but was declined. I seem to question if her mental state is as bad as she claims as with me I do not want to work with this person ever again.
Since this staff member has been off I have had to employ a staff member in a part time capacity to do a full time role.
In this time I have worked endlessly and tirelessly to do my job, train this new person and pick up all tha additional work due to staff shortages. My health has suffered and my mental health has suffered as no matter what the outcome I have blatantly told my superiors that I cannot and will not work with this person again. They advised if you do not go to mediation you will be sent to another branch. I said I will not as I feel very strongly about the way this person has dealt with all this and the way my comapny has.
My next issue is that this persons support person and who has advised her what to do works in our company and we have had a frosty relationship for the past year due to the fact that her daughter who was working for us was stealing money, consequently found out by my investigations and sacked. This person in the last months has gone out of her way to advise as many people at work as possible of what I have done. In the past weeks she has berated my other staff and had a screaming match with me which i just stood there and let her rave and rant, she has also lied about an issue with me which was adressed by her boss and mine but was not taken seriously as she was advised not to enter my office or the admin office, I addressed this again as I was not happy with this. She than put in a letter of complaint about my boss which went very high up at our head office. Again all these matters are private and confidential but she thinks she is above the law. Yesterday again she advised another staff member about what was going on when she is not allowed to do this.
Today I found out that my staff member was advised to leave a company due to the fact that there was alot of discrepencies in money and jewellery, and due to cameras which were going to be installed she left on her own accord. She was not charged as they could not proove as this was a family business but since her employment things were going astray and procedures were not adhered to. She was hired by our company due to her knowing someone and no reference checks were not done and on her resume this company where she worked was omitted. I did not hire her initially.
I myself am on a I have kept working becasue I know what happens to people who have endless time off and I dont believe why should my wages be reduced due to the negligence of the company and not being my fault.
My questions are:
What are my rights as to the fact that my company has not dealt with this as swiftly as possible.
If this staff member dealt with this at the present time and was not ill advised by others and I believe her GP this could have been sorted last year and not have this ongoing problem we have all had to deal with.
What are my rights when it comes to mediation with this support person do I have the right to say because of the problems she has caused at work that I will not have her at mediation.
Where do I stand in the fact that because of my ongoing Work injury I believe some of what has hgaappened has occured due to the problem I have.
Where do I go from here.
Submitted: 4 years ago.
Category: Australia Law
Expert:  Leon replied 4 years ago.
Good Evening

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

If the company has caused your mental anguish and you are suffering mentally you have a claim under workers compensation.

At the same time if you are part of the bullying issue you cannot refuse to go to mediation and the workcover insurer must also be involve with the rehabilitation process to get the worker back to work.

You cannot refuse to have her at the mediation. It is a matter of sorting things out and all parties have to be present.

You have a work cover claim and you should report it to the boss and lodge a claim.

Have you reported all these issues to the bosses and what have they done?

Customer: replied 4 years ago.


Your first papragraph - I dont understand how I can claim mental anguish- is this because of the bullying claim against me- is it the time line that everything has been handled.


I understand that I have to go to mediation but why should the claimants support person who has done nothing but cause trouble and is supposed to keep all this private and confidential be expected to be there.I know the claimant has to be there.


I have a workover claim are you talking about my exsisting one with my head and neck in jury or are you suggesting a new claim.


I have reported all issues. Understandably I am still employed as I believe I would have been dismissed if bullying claims were proven.


All issues have been addressed and this is where I need to know has my company done enough in the time line for this bullying claim. Or do I suck it up and be expected to work again with this staff member who has no idea of the insurmountable damage she has not only done to herself, me and my staff and expect to come back to work in the same capacity as if nothing has happened.


Do you believe I should seek more legal advise and obtain a solicitor to handle all these problems.


Expert:  Leon replied 4 years ago.
Good Evening

If you have been placed under alot of pressure since then and it is caused by your work and your employer has not done anything to reduce it then you can claim.

The claim of workers comp from the other employee has nothing to do with your mental anguish.

The support person should be silent at the mediation. If that support person has disclosed matters that should confidential that should be reported to the senior people and they should be disciplined. It should also be passed on to workcover.

If the old injury is being exacerbated then you have a new claim. It is up to your doctor to give you the certificate.

If the company has not done anything to stop it happening then they have not done the right thing.

The employee has to come back and policies need to be in place so that it does not happen again.

If you are saying that you think things have not improved then the employer needs to do more. The issue is not solved.

In your situation you should get more legal advise and speak to a Solicitor that practices in employment law. You should also consider having them at the mediation to represent you as a support person.

Do you have a solicitor or would you like a referral?
Customer: replied 4 years ago.

Good morning,

the issues with the support person have been addressed, yesterday I was instructed by our Head Office that with the complaints she has made about my boss which went to the top of the company, they are really considering dismissal on her case or her boss who has not acted accordingly. Obviously i was quite shocked that this would happen.


I am in the Geelong area and have found it hard to find a solicitor quickly as mediation has been booked in for Friday week. I have been advised that I can put this forward due to circumstances and being better prepared.

Am I better to find one in Melbourne and can you refer anyone.


One last question, do we have any recourse in the matter where staff member was asked to leave prior employment where money jewellery missing, and where we did not do any refernce checks due to her being reccommended by a fellow worker.

Expert:  Leon replied 4 years ago.
Good Morning,

In relation to a solicitor, I would suggest you contact the Law Institute of Victoria and they will be able to provide you with names solicitors the practice in employment law/workers compensation that are close to you.

The Law Institute website is as follows:

If there are no solicitors in your local area, then they will suggest solicitors that are closest to you.

There are many solicitors that are accredited specialists in this area who could assist you and hopefully get resolved quickly.

The only recourse you have, against an employee who has allegedly stolen items is to contact the police and report the missing items for the police to investigate.

On the employment side it is gross misconduct, and the employer can summarily dismissed without any ramifications.

The recommendation by fellow worker, does not mean that that fellow worker can been held responsible for the actions of the employee.

I may have had no knowledge that the employee would steal.

But the matter should be reported to the police as it is a criminal offence and the law punishes employees who steal from their employer much harder than ordinary theft.

Is there anything else I can assist you with?
Customer: replied 4 years ago.

I am confused with the answer in regards to this:

The staff member who is on Workcover Bullying claim has ommitted from her resume that she worked at a certain business where she was asked to leave due to major discrepencies in missing jewellery and money.

She was hired by our company without any reference checks done as she was reccommended by another staff member. Where do we stand as a company in regards to this, legally and should my superiors know about this. I only found out this information in the past few days.

I understand many people ommit information and falsify their resumes

Expert:  Leon replied 4 years ago.
Good Morning

My apologies, I assumed she stole from the current employment.

She is under no obligation to disclose what happened at former employment, and I would have assumed that when she is employed contact would have been made with former employers to obtain references.

The fact that your company failed to make contact with her former employer and get references is the fault of your company not the employee.

There is very little that you can do as it is the responsibility of the employer to make the relevant enquiries to satisfy themselves before they employ someone.

If the matter goes to court, the fact that she has this in her past may be used against her in a court action to discredit her reputation. But you cannot use it now to terminate her employment.

Unless when she applied for the position she was asked if there were any possible criminal charges or whether she was dismissed or resigned for misconduct and she replied in the negative then you could argue that she lied on her application.

But I would believe that this is not the case.

She is not required under law to disclose any of this.

I hope this is clearer and my apologies for misunderstanding your question.