You’ve had a few months off work with a sore back and you’re probably wondering “Is my boss going to fire me because I am making a workers compensation claim?” or “can my boss sack me because of my injury?” These are questions we get time and again.
In NSW, if you’re an injured worker on workers compensation you cannot be legally terminated within six months of your injury. This is still the case even if you’re unfit to resume work because of your injury.
If you’re looking for more information about Workers Compensation, make sure you visit our complete guide on Workers Compensation.
Can I be sacked for having an accident or injury at work?
You cannot be fired for having an injury at work that leaves you in a position where you are unfit for employment. Injured workers are protected right from the day of their injury. So if you have been injured at work and are worried that you are going to be sacked because of it, don’t worry, because you are within the protective period.
Protective Period for Injured Employees
Section 248 of the Workers Compensation Act 1987 provides a protective period to workers that usually ends after six months. If it has been six months since the date of injury, your employer can terminate you. This is given that they have met all their obligations to you.
What happens to me after the protective period?
After the protection period ends, termination of employment may be necessary if the employee is unable to return to their pre-injury role. The employer must follow a fair and lawful termination process, which includes assessing the employee’s fitness for work, requesting medical reports, and providing notice of termination and entitlements. Employers must also facilitate the safe return to work of employees who have recovered from their injury by offering suitable duties and workplace support.
Your employers’ responsibilities whilst you are on Workers Compensation
Even after the six-month protective period, your employer still has obligations towards you. Your employer is responsible for trying to do everything in their ability to help you get back to work. This includes, providing suitable duties for your return to work and developing an injury management plan.
After the six-month protective period, your employer still has key obligations towards you on workers’ compensation in NSW:
- Provide suitable duties that accommodate your injury and aid your return to work.
- Develop an injury management plan in collaboration with medical professionals and rehabilitation providers.
- Maintain open communication, keeping you informed and involving you in decision-making.
- Offer necessary support and resources for your recovery and return to work.
- Ensure a safe work environment through risk assessments and appropriate measures.
These actions show your employer’s commitment to your well-being, aiding your successful reintegration into the workplace.
Penalties if employers don’t meet their obligations
If employers fail to meet their obligations towards injured workers, there are potential penalties they may face. In such cases, injured employees have the option to report their employer to the workers’ compensation insurer and the State Insurance Regulatory Authority (SIRA). It is advisable to discuss this situation with a union representative or an employment lawyer to explore further actions that can be taken.
Employers who fail to fulfill their obligations to injured workers may be subject to fines exceeding $11,000.
My employer has asked me not to make a workers compensation claim, what should I do?
All too often, clients tell us about serious injuries they have sustained at their workplace, some even requiring hospitalisation. However, some of these clients are too afraid to submit a claim form because they feel it might threaten their employment or relationship with their employer.
Your employer cannot and should not stop you from making a workers compensation claim.
Unfortunately, many employers put pressure on an employee to stop them from making a claim or reporting a workplace injury. Some employers have even threatened the workers ongoing career if a claim is lodged.
You must remember that you are legally entitled to make a workers compensation claim and it is illegal for your employer to stop you from making a claim.
If your employer is pressuring you not to file a claim, please contact us for legal advice.
I have been terminated, whilst on Workers Compensation, what should I do?
You are still entitled to your workers compensation benefits even if you have been terminated. These include medical treatment benefits and weekly compensation benefits.
Your entitlements will depend on whether you’re unfit to return to work altogether or whether you’re certified unfit for pre-injury duties but fit for suitable duties. This will depend on what your treating doctor has recommended. Nevertheless, you will continue to receive reasonably necessary medical treatment and weekly payments/benefits in accordance with your entitlement period.
Can I sue my employer for termination while I’m on workers compensation?
The answer depends on the circumstances surrounding your termination. In general, employers are allowed to terminate employees on workers’ compensation if the termination is unrelated to your injury or the workers’ compensation claim. However, if the termination is directly related to your injury, such as being fired for taking time off to recover, it may be considered discrimination and retaliation, which is illegal.
If you believe you were unfairly dismissed while on workers’ compensation, you have the option to file an unfair dismissal claim with the Fair Work Commission. To pursue legal action, you must have worked for the company for at least six months, file the claim within 21 days of termination, and not be in a protection period. Successful claims may result in compensation, such as reinstatement or monetary compensation, based on factors such as your length of service and entitlement period.
Redundancy whilst on workers compensation
Being made redundant while on Workers Compensation in NSW comes with specific legal obligations for employers. Redundancy occurs when employers no longer require an employee’s role due to operational reasons. While employers can make you redundant while on workers’ compensation, they must adhere to certain obligations.
These obligations include providing the appropriate notice period, which varies based on your length of service. For instance, if you have worked for less than a year, you are entitled to one week’s notice. If you have worked for over five years, you are entitled to more than four weeks’ notice. Additionally, employers must fulfill payout entitlements based on your length of service and employment terms, and they may need to provide redundancy pay if applicable.
Executive redundancy is an additional consideration for executives. In such cases, employers terminate employment due to specific reasons like executive role redundancy, technological changes, or company restructuring. Executives may be entitled to higher notice periods and termination entitlements compared to regular employees.
Related article: Redundancy While on Workers Compensation in NSW
Can I be reinstated after being terminated or made redundant?
If you have been terminated or made redundant because you’re unfit for work due to your injuries, there are certainly avenues for reinstatement.
Under Section 241 of the Workers Compensation Act 1987, you have the right to seek reinstatement from the employer who dismissed you because of your work-related injury. If your employer fails to accept your application for reinstatement, Section 242 of the Workers Compensation Act 1987 allows you to seek reinstatement from the Industrial Relations Commission. However, keep in mind that in most cases, the Commission won’t issue reinstatement orders if applications are made more than two years after the dismissal of the injured worker.
Legal Advice if you’ve been terminated while on workers compensation
Whether you’re recovering from an injury, trying to understand your workers compensation entitlements or you have just been terminated, we understand that this can all be a lot to handle. Our experienced Workers Compensation Lawyers will be able to review your claim and make sure you receive your full entitlements.