Can you get fired while on workers compensation? The short answer is YES!
While your employer may terminate you, it is not legal for them to do so within six (6) months of your injury, purely because you’re unfit to return to work. This period is called the ‘protected period’.
After 6 months however, it is legal for your employer to terminate you, provided they have facilitated all things possible to assist you to return to work.
If you are terminated however, you may have options to seek reinstatement.
Your employer’s obligations to you while on worker’s compensation/WorkCover
Your employer should facilitate your return to work by:
- Participating in the development of the your injury management plan.
- Complying with their obligations set out in the injury management plan.
- Providing you with suitable work where reasonably practicable, when you’re able to return to work, either on a full-time or part-time basis, with or without restrictions.
- Providing you with suitable work that is, where reasonably practicable, the same as or equivalent to the work you performed at the time of your injury.
Part of supporting your return to work, requires that your employer identifying suitable work options for you by considering the following:
- The physical demands of each task.
- The impacts of your injury, and any medication you may be taking on your ability to manage the psychological, cognitive, and social demands of the duties being offered.
- Whether the environment you are returning to is appropriate, considering confined spaces, seating arrangements, uneven surfaces and working alone and whether these would impact on your ability to undertake specific tasks.
- Elimination or substitution of tasks to reduce the risk of further injury to you.
- If the duties identified fall outside what would be considered your usual duties, then whether you require further education or training to complete the duties safely.
- How your personal circumstances influence your recovery at work. For example, if your employer were to relocate you, they should consider where you live and whether this creates difficulty getting to and from work.
- Whether the duties add value to the workplace. If the duties do not add value, you may become unmotivated or discontent.
Terminating an employee on workers compensation/WorkCover in NSW – what about your entitlements?
If your employer dismisses you while you’re away from work on worker’s compensation, they must give you written notice.
- Give you your minimum notice period which can run at the same time as their absence on worker’s compensation.
- Pay you in lieu of notice.
- Give a combination of the two.
If your employer terminates your employment purely because your GP continues to certify you as being unfit for work, you’ll still be eligible to receive your workers compensation benefits.
That is, if you’re certified unfit to return to work, you will still be entitled to receive reasonably necessary medical treatment and weekly benefits in accordance with your entitlement period.
If on the other hand, you’re certified unfit to return to pre-injury duties but are fit for suitable duties, you will receive pro-rated medical treatment and weekly benefits in accordance with your entitlement period.
When your employment eventually ceases (for example, when you resign or are terminated), your weekly benefits will stop being paid by your employer, and the workers compensation insurer will then start to pay your weekly benefits to you directly.
Can I resign while on workers compensation/WorkCover in NSW?
You can resign from your job while on workers compensation provided you give the correct notice period to your employer. You can use your workers compensation period as the notice period. In some circumstances, it is not recommended to resign, and we recommend seeking advice in relation to this prior to formally resigning because it can be used against you in your claim.
Can your employment be reinstated if you’ve been terminated by your employer while on workers compensation/WorkCover in NSW?
If your employer has terminated your employment due to your injury, you may seek reinstatement of your employment when you’re certified by your GP as fit to return to pre-injury duties. Provided it has not been more than two years since your dismissal, you can seek reinstatement:
Step 1
Speak to your employer about reinstatement. If not to your pre-injury role, to one that is not less advantageous than your pre-injury role.
Step 2
If your employer is unwilling to reinstate you, you need to apply to the Industrial Relations Commission (IRC) for a reinstatement order.
Issa Rabaya
• Bachelor of Laws
• Graduate Diploma in Legal Practice
• Approved Legal Service Provider to the Work Cover Independent Review Office
• Member of the Law Society
