“You’re terminated!” They’re the two words nobody, under any circumstances, ever wants to hear or receive in writing. The flow-on effect from losing a job can be catastrophic – potentially leaving you financially unstable, emotionally insecure and contemplating your worth in the workforce.
Yes, there’s never a good time to receive this news, but imagine being terminated when you’re physically incapacitated and incapable of completing the tasks you love or are trained to perform. Unfortunately, this is the reality for many Australians every year who suffer a workplace injury and require medical aid and time off. Is this legal?
Most people who get injured at work and lodge a workers compensation claim are doing it for the first time. Feeling vulnerable and apprehensive about the future is generally a given among these individuals – the majority of whom don’t have a legal representative advising them. But it’s important to note that there is legislation in place that tries to help protect the injured worker.
The NSW Workers Compensation Act 1987, Part 8, essentially prevents employers from terminating an employee who has sustained a work injury of any kind, purely because they’re unfit to resume work within the first six months. During this ‘protected period’, if an employer terminates an injured worker’s employment because they’re not fit for employment as a result of the injury, then the employer may be liable to pay a fine of up to $11,000.
Keeping the worker’s position available for the first six months while they undergo rehabilitation isn’t the only expectation of the employer. The employer needs to be actively involved in the recovery, which includes arranging a treatment plan alongside a WorkCover approved workplace rehabilitation provider. Failure to do this can leave the employer at risk of fines in excess of $11,000.
So, what happens if the employer terminates the worker anyway?
According to Chantille Khoury, a principal solicitor at Law Partners, should the employer terminate an injured worker in violation of the Act, the worker would certainly have options available to them.
“Depending on the size of the business, these kind of fines may be sufficient enough to act as a deterrent, but there are businesses out there who will willingly incur these penalties in order to terminate and break ties with a worker who cannot perform their duties,” Chantille Khoury explains.
“If this occurs, the worker and potentially their legal representative, will likely consider their best course of action which may include unfair dismissal applications or simply relying upon workers compensation.
“Even if the employer fulfils its obligations within the first six months and then terminates the worker, the worker still has the right to seek reinstatement of their employment with the Industrial Relations Commission within two years of the dismissal.”
Just like injured athletes who commence their journey back to competition by taking part in only certain aspects of training, many injured workers will be initially cleared to return to work on suitable duty restrictions. Employers are obliged to provide injured workers, who are cleared to return to work on certain restrictions, with suitable work wherever practically reasonable. If they don’t and decide to terminate the employee, the employee can go on to make an application to the IRC for reinstatement.
If the worker’s injury is severe and leaves them with significant permanent impairment as a result of the employer’s negligence, further action can be taken. Say for example the worker slipped on liquid coming out of a leaking pipe in the kitchen, and the employer knew about it and failed to have it fixed – then the worker could be eligible to make a work injury damages claim (settlement for lost and future income and superannuation).
Essentially, there is legislation in place to heavily deter employers from terminating injured workers, particularly in the initial six months. If they still decide to terminate, the worker does have a clear avenue to dispute and be reinstated, and potentially claim compensation, medical support and future income and superannuation. If you find yourself in this position, it’s important you know your options and potentially seek legal representation.