Short answer: No…  unless your employer wants to face criminal charges for doing so.

Victorian legislation makes it a criminal offence for an employer to engage in discriminatory conduct by dismissing, altering the position of or treating a worker less favourably based on that worker giving notice of an injury or making a workers compensation claim. If convicted, a court may award damages, order that the worker be paid up to 12 months remuneration or order reinstatement.

Complicating factor: In defence of such a charge, an employer may argue that the dismissal occurred pursuant to the Occupational Health and Safety Act 2004 (Vic) because the worker was unable to perform the inherent requirements of his or her job.

Therefore, it’s not always a straightforward ‘yes/no’ answer and you should obtain legal advice in this situation.

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