Suffering a workplace injury can be a harrowing experience – recovering and rehabilitating can be gruelling enough without also worrying about whether you may lose your job when you take time off to get better.
In NSW (and around Australia), an injured worker’s employment status is protected by legislation such as the Workers Compensation Act 1987. This article explores whether there are any circumstances under which your employment can be terminated in NSW after suffering a workplace injury.
How injured workers are protected
It’s illegal for an employer to terminate an injured employee in NSW within the first six months of an injury or the filing of a workers’ compensation claim, solely on the basis that they’re unfit to return to work.
This is otherwise known as a worker’s ‘protected period’. It is known as the right under Section 248 of the Workers’ Compensation Act 1987 (NSW)
A worker is entitled to statutory benefits covering lost wages and medical expenses as soon as their claim is accepted. After the protected period, an employer is obliged to assist the injured employee to return back to work by helping them develop an injury management plan and providing suitable work duties which take into account the injury and which they can perform safely and effectively.
Employers are expected to make reasonable adjustments to accommodate employees who have suffered injuries. This may include providing assistive devices or altering work hours to ensure that the injured employee can continue to work effectively.
What happens if a worker takes sick leave?
Where a worker needs to take sick leave as they recover from an injury that was not sustained at work, the employee’s job remains protected provided:
- They’ve been away from work less than three months in a row (or less than three months over a 12-month period),
- They’ve taken paid or unpaid leave, or a combination of both,
- They’ve provided proof of your injury, such as a medical certificate.
The employee’s position may not be protected if more than three months is taken off work on sick leave, even with proof of the injury.
Do employees have responsibilities in this situation?
While the Workers Compensation Act provides important protections, injured employees also have responsibilities, including:
Prompt reporting: Injured employees are required to report workplace injuries to their employer as soon as possible. Timely reporting is crucial to initiate the workers’ compensation process and ensure that medical treatment and support are provided promptly.
Cooperation in medical assessment: An injured worker must cooperate with medical assessments to determine the extent of their injuries and their ability to return to work. These assessments help establish the appropriate level of compensation and the feasibility of returning to work.
Participation in rehabilitation: If rehabilitation is recommended as part of the recovery process, injured employees should actively participate in rehabilitation programs and follow medical advice to maximise their chances of returning to work.
Communication with employer: Injured employees should maintain open communication with their employer throughout the recovery process. Discussing work-related concerns, potential changes to their job or duties, and return-to-work plans can help facilitate a smooth transition back to the workplace.
Reinstatement and compensation: In cases where the injury results in temporary disability, injured workers have the right to reinstatement to their previous position once they recover. If the injury leads to permanent impairment that prevents the employee from returning to their previous role, the Act provides compensation measures to support the injured worker’s transition to suitable alternative employment.
What should you do if you’re treated unfairly or wrongly terminated while injured?
Despite the legislative protections, injured employees can face unfair treatment, discrimination, or wrongful termination when they’re forced to take time off work because of the injury. Employers can sometimes use the injury as an excuse or pretext to end the worker’s employment. But as we’ve outlined, both employers and employees have rights and responsibilities under the Workers Compensation Act when it comes to a workplace injury. It’s wise to seek legal advice and representation to protect your rights and pursue appropriate remedies. Call our expert workers’ compensation team at BPC Lawyers today for more information.