When a worker has commenced a claim for compensation against an employer alleging the employer is negligent for a workplace injury, the employer has a legal obligation to disclose relevant information and documents.
The obligation to disclose relevant documents is required by all parties involved in the claim.
During the pre-proceedings stage (that is, once a Notice of Claim for Damages is served on the employer, but before proceedings are filed in a court), the parties are legally required under section 279 of the Workers’ Compensation & Rehabilitation Act 2003 (Qld) to provide:
The term “relevant documents” is very broad and refers to reports and documentary material, such as statements taken by the worker, the employer, other parties involved, or witnesses. It can include incident reports, training records, meeting notes, video footage of the event and the worker’s human resources records. However, this is not an extensive list.
The employer is required to fully cooperate and give WorkCover all information and access to documents that relate to the claim that is reasonably requested.
As WorkCover’s lawyers, we ask employers to provide all documents that are relevant to the claim due to the broad nature of what is considered a “relevant document”. We then determine what information must be disclosed to the worker’s solicitors and any other parties involved.
The duty to disclose documents and information is ongoing. If the parties are unable to resolve the claim during the pre-proceedings stage and the worker begins court proceedings (that is, once a Statement of Claim is served on the employer), the employer has a legal duty to disclose each document that is in its possession or under its control and directly relevant to the allegations in issue, under Rule 211 of the Uniform Civil Procedure Rules 1999 (Qld).
Disclosure of relevant documents and information must occur within 21 business days of the service of a Notice of Claim or within 21 business days after the document is received by a party.
Disclosure of relevant documents is required regardless of whether it assists the worker or the employer in the claim. Providing all information and documents relevant to the claim allows the parties to understand the issues, it can assist with the early resolution of a claim and avoid unnecessary delay in the proceedings.
Where a party delays or withholds relevant information and documents until the day before a conference between the parties or the day before a court trial, not only is there a real risk that it could delay or adjourn the proceedings, the employer can also be ordered to pay costs. A party may also be unable to rely on a document at trial, unless a Court decides otherwise.
If you have concerns about releasing particular information, it is best to have a discussion with the lawyer. If the document is relevant to the claim but it includes commercially sensitive information not relevant to the claim - or, for example personal information of employees that are not involved in the circumstances of the event - the information can be redacted.
Keeping accurate and detailed records is key!
Where a worker makes a claim for a workplace injury that occurred months or years prior, due to the time that has lapsed, it can be difficult to get in contact with witnesses that have left the company or witnesses may have difficulty recalling the details of the incident.
Where a workplace incident has occurred, having an incident reporting process in place where all parties provide a statement or read and acknowledge the recording of the incident, if they agree, has many benefits. Aside from identifying any issues, it can save time and disputes later down the track. All too often we see claims where the circumstances of the incident are not recorded or the version recorded is in dispute by other witnesses who have not contributed to the incident reporting process.
Article written by Tony Rosenthal (Partner) and Nadine Wardell (Solicitor).
"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."