Can I be fired whilst on workers compensation?

Apart from the payment of workers compensation, an employer has an obligation to rehabilitate the injured worker, including, where able, to facilitate the worker into another position; whether that be within or out of the organisation.

 However, as is becoming more apparent, employers are finding it easier to simply get workers off their books than having to deal with their rigorous obligations for the payment of compensation, rehabilitation and redeployment of workers.

So if you’re a worker who has suffered an injury at work and your employment has been terminated, what can you do? What rights are you afforded? 

An injured worker is afforded some protection from termination under Part 8 of the Workers Compensation Act 1987 (NSW). 

The extent of protection will however depend upon: 

  1. Whether you’re fit to perform your pre-injury job, and/or
  2. The reasons for why your employer terminated your employment.

Unfit to work in pre-injury employment

If you cannot do the inherent requirements of your job, your employer can terminate you.

However, it is a criminal offence for your employer to terminate your employment because you’re unable to perform such requirements because of a work injury IF they terminate you within 6 months from when you first become unfit for your pre-injury job.

Whilst this prohibition is a criminal provision, the conduct of your employer in terminating you because you make a claim for workers compensation will create a civil liability upon your employer, to which you can sue for modest compensation under the protections found in the Fair Work Act (Cwth).

This protection is only available to you if you comply with any reasonable request the employer makes to send you for a medical examination on the matter.

Fit to work in pre-injury employment

If an employer terminates your employment because you’re unfit for work (so they allege) due to a work injury which you’re fit to perform, then another remedy might be available to you.

If, after termination, you send your employer a medical certificate certifying you’re able to do you pre-injury job or another job up to the same vantage point as your old job, then the employer must reinstate you into that position which you have capacity.

Interestingly, if your employer wishes to allege that you’re not entitled to reinstatement as your injury is not work related, then they must overcome a presumption that says otherwise.  That is, it is up to them to rebut a presumption that your termination was because of some non-work related condition.

Conclusion

The general rule has always been that an employer can terminate your employment for any reason at any time.

That still remains the general proposition at law.

But depending on the reasons or reasonableness for their decision might determine if and to what extent you can seek a Court or Tribunal to correct the effect of this decision.

For workers injured in the course of their employment, the Workers Compensation Legislation works (or at least is designed to work) hand in hand with the Fair Work Act 2009 (Cwth) to provide assistance above that of the ordinary worker who has had their employment terminated. However, as is seen in this article, the Court/Tribunals can have great difficulty in providing a fruitful remedy to an employer’s termination notice.

The question is what avenue best achieves the best outcome for the worker?

This is a question of fact and degree of the particular case, to which will need assessment by a competent legal advisor within the area.

If you have been seriously injured at work and are worried about the future in the workforce, then you should contact our office right away and speak to one of our accredited specialists.

Timothy Driscoll

Associate

14 August 2017