Magistrate Wright recently found that a Worker who was injured before retrenchment and made a claim afterwards, was not entitled to have over time included in the calculation of his weekly payments.
The worker, Mr McClusky, injured his right knee when he fell down stairs at work in August 2015. Mr McClusky reported the injury and an incident report was completed. He was off work for a day only and recommenced with a medical certificate stating that he could perform full time alternative duties. McClusky’s employer paid for medical expenses and time off. Mr McClusky was then made redundant on 17 September 2015 and this was not related to being injured. He made a claim for weekly payments on 1 October 2015.
Under the Workplace Injury Rehabilitation and Compensation Act (Vic) 2013, it is only possible to include overtime and shift allowance in the calculation of a worker’s weekly payments for the first 12 months that weekly payments are paid or payable (“the enhancement period”), if, but for the worker’s injury, they would have been likely, at any time during this period, to have worked paid overtime or shift allowance.
In this case, compensation was only paid or payable after the claim was made, which was after retrenchment. The worker would not have been able to work overtime in the enhancement period (12 months after weekly payments are paid or payable), irrespective of whether or not he had been injured, because he was made redundant.
see decision of Magistrate B.R. Wright in McClusky v Oxford managers [2017]VMC002.
For further information about calculation of weekly payments, call Penny on 59241007
