If you have a significant injury which will result in you being unable to return to work for some time, your right to continuing employment may be uncertain.
In these circumstances, what are your rights to continued employment if the nature of your injury prevents you from returning to work?
Where do you stand?
There are a number of statutory protections for injured workers. General protection from dismissal is provided by the Fair Work Act, but in New South Wales the issue is especially determined under the Workers Compensation Act.
In NSW it is an offence for an employer to terminate your employment within six months of the date you first become unfit for employment if the reason for termination is that you are not fit for work due to your injury.
After the six months expires your employment is no longer protected under the Workers Compensation Act if you are dismissed because you are not fit for work as a result of your injury.
If your employment is terminated, your rights to compensation under the Workers Compensation Scheme will not be affected. You will continue to receive benefits as normal.
You are entitled to continue to accrue annual and long service leave entitlements whilst you are in receipt of workers compensation benefits. Termination of your employment should result in a payout of your accrued leave balances.
There is also a provision in NSW that allows an employee to apply to the NSW Industrial Commission for an order for reinstatement if you were dismissed due to a work injury and later fit to return to your pre-injury duties. The application is to be made within two years after the dismissal.
What you need to do next
If any of the above information is applicable to you please consult our compensation team. You will require legal advice as your rights upon termination are individual to your circumstances. For example, you may be entitled to accident pay under an award and this may alter the applicable time periods.
Depending on the circumstances of the case a termination of your employment may give rise to a claim of discrimination under the equal opportunity laws or unfair dismissal. Any action in unfair dismissal must be taken within 21 days after you have been notified.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
