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Termination of Employment While on Workers Compensation in NSW – Is It Allowed?

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Posted on

July 8, 2022

by

Workers Compensation

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’.

6 months calander

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.

woman at the office

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.
factory worker male

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.

man working at the office
resignation

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

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

Step 2

If your employer is unwilling to reinstate you, you need to apply to the Industrial Relations Commission (IRC) for a reinstatement order.

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The Withstand lawyers team that helped me with my claim were amazing, talking me through each step and being understanding and thoughtful to my feelings. I would highly recommend them to anyone needing compensation lawyers. Thank you Withstand!!
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The Lawyers at Withstand are really really helpful I know I waited for quite a few years to get my results for the Motor Vehicle Accident and then I got a call just a month ago from Nayven Taouk. He told me that he's going to take up my case and yes we got the Best Outcome. Thank you!
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Terrific experience and positive outcome. It was unfortunate we did not go to them first. I would recommend them for anyone who wants qualified, quick, efficient support. Thank you Tanja, Robert and the team.
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*Our No Win No Fee policy means that you will not be out of pocket for our costs or disbursements if you lose your claim – no win no fee. If we commence court proceedings and you are unsuccessful you still won’t be out of pocket for our costs and disbursements however you will be out of pocket for the other sides legal costs and disbursements. Prior to commencing proceedings we will provide you with an authority explaining the risks and costs which could arise if you lose in court, one being that if you lose in court you would be liable for the legal costs and disbursements of the other side.
Kristy W
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The Withstand lawyers team that helped me with my claim were amazing, talking me through each step and being understanding and thoughtful to my feelings. I would highly recommend them to anyone needing compensation lawyers. Thank you Withstand!!
Francis A

Read More
The team really know their staff. To Nayven, Issa, Sam and Danielle a heartfelt thank you for all your hard work, courtesy, superb efforts and a big thumbs up from me.
Zilla W

Read More
The Lawyers at Withstand are really really helpful I know I waited for quite a few years to get my results for the Motor Vehicle Accident and then I got a call just a month ago from Nayven Taouk. He told me that he's going to take up my case and yes we got the Best Outcome. Thank you!
Hazel A

Read More
Terrific experience and positive outcome. It was unfortunate we did not go to them first. I would recommend them for anyone who wants qualified, quick, efficient support. Thank you Tanja, Robert and the team.
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*Our No Win No Fee policy means that you will not be out of pocket for our costs or disbursements if you lose your claim – no win no fee. If we commence court proceedings and you are unsuccessful you still won’t be out of pocket for our costs and disbursements however you will be out of pocket for the other sides legal costs and disbursements. Prior to commencing proceedings we will provide you with an authority explaining the risks and costs which could arise if you lose in court, one being that if you lose in court you would be liable for the legal costs and disbursements of the other side.

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