In New South Wales (NSW), injured workers are generally protected from being dismissed while they are on worker’s compensation. The Workers Compensation Act 1987 (NSW) and the Fair Work Act 2009 (Cth) provide statutory protections for injured workers.
It is important to understand that the protections against dismissal while on worker’s compensation are designed to protect workers who have been injured at work from being dismissed because they are unfit for employment because of their injury. These protections are not a shield against reasonable employer actions, such as summary termination for valid reasons.
The Workers Compensation Act 1987 (NSW) provides that an employer cannot dismiss an injured worker within 6 months of their injury, if:
(a) the worker is dismissed because the worker is not fit for employment as a result of the injury, and
(b) the worker is dismissed during the relevant period after the worker first became unfit for employment.
However, there may be situations in which an employer can dismiss an employee who is on worker’s compensation, provided that the dismissal is not related to the worker’s injury. For example:
- Genuine Redundancy: If your position is genuinely made redundant, and the decision to terminate your employment is not based on your injury, your employer may proceed with the dismissal.
- Misconduct or Poor Performance: If you engage in misconduct or consistently perform poorly, and this is unrelated to your injury, your employer may have grounds for dismissal.
- Contractual or Legal Violations: If you breach your employment contract or violate workplace policies, your employer may consider dismissal.
It is essential to review and consider any termination of employment while you are on worker’s compensation, as it may be considered unfair or discriminatory. There are some other important considerations to keep in mind:
- Unlawful Termination: In NSW, it is generally unlawful to terminate an employee’s employment because they have made a worker’s compensation claim or for any reason related to a workplace injury. The Fair Work Act 2009 (Cth) and the Workers Compensation Act 1987 (NSW) provide protections for injured workers.
- Fair Work Commission: If you believe you have been terminated unlawfully while on worker’s compensation, you may be able to make a claim with the Fair Work Commission or pursue legal action for unfair dismissal. Any application to the Fair Work Commission for unfair dismissal must be made within 21 days of your dismissal. You must have been employed for at least 6 months before you are entitled to make a claim for unfair dismissal. If you are employed by a small business (an employer with fewer than 15 employees at a particular time), you need to have been employed for at least 12 months before you can apply.
- Legitimate Termination: If your termination is for reasons unrelated to your worker’s compensation claim and is in accordance with the terms of your employment, contract, or award, it may be considered legitimate.
If you, or someone you know, has been injured at work, we would be pleased to meet with you to discuss your options at no cost to you. The Independent Review Office (IRO) funds legal advice and services for injured workers in NSW.
Please contact our friendly team on (02) 4050 0330 to make an appointment with one of our specialist personal injury solicitors.
What happens if I am terminated while on worker’s compensation?
If your employer dismisses or terminates you while you are on worker’s compensation in New South Wales (NSW), We encourage you to contact an employment lawyer as soon as you can, as there are strict time limits that apply to employer/employee disputes, such as unfair dismissal, constructive dismissal and general protections claims. For example, you are required to file unfair dismissal claims with the Fair Work Commission within 21 days of the effective termination of your employment.
