Claims management other

Overview

Industrial and employment laws may have an impact on injured workers and employers, especially when an injured worker is not able to return to pre-injury duties or other suitable employment. An injured worker may be protected from dismissal by Part 8 of the Workers Compensation Act 1987 (1987 Act) and the Fair Work Act 2009 (Cth).

The provisions regarding protection of injured workers are contained in sections 240-250 of the 1987 Act and apply to employees who are entitled to workers compensation, whether the employees are covered by state or federal industrial laws.

However, the fact that the period of 6 months has elapsed does not mean that an employer can simply terminate the worker’s employment. There must still be a valid reason and proper procedure must be followed. The valid reasons may include that the worker is unable to perform the inherent requirements of the job, or that the worker has been absent from work for a lengthy period of time with no indication of when the worker might be able to return to work.

Any new worker hired to replace a dismissed worker must be informed that the dismissed worker may be reinstated to the position for which the new worker was hired – section 247 of the 1987 Act.

The statutory protection from dismissal only applies if the reason, or a reason, for the dismissal is the worker’s incapacity resulting from a compensable workplace injury. It does not prevent an employer dismissing injured workers for other reasons, for example, non-work-related illness or injury, misconduct or poor performance.

Reinstatement

A dismissed worker may make an application for reinstatement within two years of dismissal if a medical certificate is produced to the employer certifying that the worker is fit for employment in his or her former position or for other “work of a kind”. If the employer does not reinstate the worker, the worker can make an application to the Industrial Relations Commission (IRC).

If successful in an application for reinstatement, the worker may obtain orders from the IRC:

• that the worker be reinstated to his or her former position, or
• that the worker be appointed to another position on terms and conditions no less favourable than the former position, or
• if the employer does not have employment of that kind available, employment of any other kind for which the worker is fit.

The IRC may also order that the worker be paid any wages or other remuneration lost in the period between the application for reinstatement and re-employment.

If a worker is reinstated, the IRC may order his or her continuity of service with the employer is not affected by the dismissal and subsequent reinstatement. The period between dismissal and date of the application for reinstatement is not taken into account for calculating long service leave entitlements, etc.

If a dispute arises as to the worker’s condition or fitness for employment, the IRC can refer the matter to a medical assessor in the Personal Injury Commission as provided by Part 7 of Chapter 7 of the 1998 Act.