Protection of Your Employment Whilst On Workers’ Compensation Benefits in NSW

By 10 December 2018Employment Law

Suffering a serious work-related injury is devastating. Fortunately, getting workers’ compensation benefits can help make ends meet and relieve some anxiety in the short term. Nevertheless, you will likely have ongoing concerns about what will happen if and when you go back to work. Here’s what you should know about employment protection whilst you’re on workers’ compensation benefits in New South Wales.

It’s the law

If you were hurt on the job in NSW, you have certain legal rights under both the Fair Work Act and the Workers Compensation Act 1987 No. 70.

In general this means you can’t be fired because of your injury in the first six months after you are deemed “unfit for employment”. If you meet certain criteria, the Workers Compensation Act may shield you from dismissal for even longer. However, the employment protection afforded by Part 8, Section 248 of the Workers Compensation Act usually ends after six months if your injury prevents you from returning to work.

You should also be aware that your employer will not be punished for dismissing you within the applicable period if they can prove that:

  • You refused to have a medical evaluation needed to determine fitness for employment at the time; or
  • they had valid reason(s) to believe that you did not meet the applicable, legal definition of an injured worker at the time.

On the other hand, the employer will be sanctioned for firing you within the six month or relevant period if the prosecutor demonstrates that, “the injury was a substantial and operative cause of the dismissal”.

Applying for reinstatement

Under Part 8, Section 241 of the Workers Compensation Act, you have the right to seek reinstatement from the employer who dismissed you because of your work-related injury.

Specifically, the law allows you to request “reinstatement to employment of a kind specified in the application”. However, the type of work you apply for can’t be “more advantageous” to you than the type of work you were doing before you got hurt and were deemed unfit for employment. In other words, you can’t apply for employment with a higher salary or greater benefits.

You must also give your employer a medical certificate indicating that you are capable of doing the kind of work for which you applied for reinstatement.

If your employer does not accept your application for reinstatement immediately, Part 8, Section 242 of the Workers Compensation Act allows you to seek reinstatement from the Industrial Relations Commission, or have an “industrial association of employees” make an application for you.

Keep in mind, however, that there are strict deadlines for doing so. In most cases, the Commission won’t issue reinstatement orders if applications are made more than two years after the dismissal of the injured worker because of his or her injuries. Generally, it will only make exceptions due to “special circumstances”.

You should also be aware that Part 8, Section 245 of the Workers Compensation Act authorises the Commission to refer any dispute over your “condition or fitness for employment” to an “approved medical specialist” for evaluation. The specialist must then submit a report to the Commission as instructed.

Finally, Part 8, Section 243 of the Workers Compensation Act allows the Commission to issue orders for reinstatement that:

  • Permit you to be reinstated to the type of employment you applied for, or similar employment with equal pay and benefits, as long as it finds you are fit for that type of work;
  • ensure you are “reinstated to¬† employment of any other kind” with your employer, as long as you are capable of doing the work, when the type of work you are seeking reinstatement to is not available.

Under this section, the Commission can also order your employer to provide financial compensation for a specified period.

Pursuing other options

Depending on the specific circumstances of your case, you may be able to pursue a claim of discrimination under the equal opportunity laws for unfair dismissal. Keep in mind, however, that you must initiate a claim for unfair dismissal within 21 days following notification.

If you were injured at work in NSW and you are receiving workers’ compensation benefits, your recovery should be your first priority. But getting the best possible legal advice is also imperative, especially when your livelihood is at stake. Don’t leave anything to chance, contact us today.