Can I be dismissed while on workers compensation in NSW?
No, you generally cannot be dismissed solely because you are on workers compensation in NSW. Australian law prohibits dismissal purely due to a workplace injury, but dismissal for unrelated, valid reasons may be permissible under specific circumstances.
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How it works in practice
General Protection Against Dismissal
In New South Wales, workers who suffer a workplace injury and are receiving workers compensation are protected from dismissal solely due to that injury. The Workers Compensation Act 1987 (NSW) makes it unlawful for an employer to terminate an injured worker's employment within the first six months of incapacity for work, if the dismissal is because of the injury.
Discrimination Laws
Beyond the initial six-month period, broader anti-discrimination laws also provide protection. It is generally unlawful to dismiss an employee because of their disability, which includes a workplace injury. Employers must consider all reasonable adjustments to accommodate an injured worker, including suitable duties or modified roles, before contemplating dismissal.
Employer Obligations
Employers have a responsibility to assist injured workers in their return to work. This includes providing suitable duties where possible and engaging in a proper rehabilitation process. Failure to meet these obligations can strengthen an employee's case against unlawful dismissal.
Important exceptions
Dismissal may be permissible in specific situations, even for a worker on compensation. An employer can legally dismiss a worker if the dismissal is for a valid reason unrelated to the injury or their incapacity, such as genuine redundancy, serious misconduct, or poor performance unrelated to the injury.
Additionally, after the initial six-month period of incapacity, an employer may be able to dismiss an injured worker if they are unable to perform the inherent requirements of their role and there are no reasonable adjustments or suitable alternative duties available. This requires thorough consideration and evidence from the employer.
What you should do now
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Seek immediate legal advice from an employment lawyer specializing in workers compensation if you receive a dismissal notice.
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Contact the State Insurance Regulatory Authority (SIRA) or WorkCover NSW for guidance on your rights and employer obligations.
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Gather all relevant documentation, including medical certificates, return-to-work plans, and any communications regarding your dismissal.
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Review your employment contract and any applicable enterprise agreements or modern awards for specific terms regarding dismissal and injury.
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Consider dispute resolution options, such as mediation or conciliation, if you believe your dismissal was unlawful or discriminatory.
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