Claims management other

Overview

Industrial and employment laws may impact injured workers and their 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).

However, the fact that the 6 months have passed does not mean that an employer can simply terminate the worker’s employment. There must still be a valid reason and the employer must follow proper procedures. A valid reason may be 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 with no indication of when they might be able to return to work.

An employer must inform any new worker hired to replace a dismissed worker that the dismissed worker may be reinstated to the position.

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

Reinstatement

A dismissed worker may apply for reinstatement within two years of dismissal. The worker must send a medical certificate to their employer, certifying that they are fit for the employment for which they have applied for reinstatement. The employment they applied for cannot be more advantageous than their previous employment.

If the employer does not reinstate the worker, the worker can apply to the Industrial Relations Commission (IRC) for a reinstatement order. If successful, the IRC may order:

• the worker be reinstated to the position they applied for, or
• if such employment is not available, the worker be appointed to another position on terms and conditions no less advantageous than the position applied for, or
• employment of a kind that is available but that is less advantageous to the worker, or
• employment that the IRC considers the employer can reasonably make available for the worker.

The IRC may order the worker be paid any wages or other remuneration lost in the period between the reinstatement application and reinstatement.

If a worker is reinstated, the IRC may order their continuity of service with the employer be not affected by the dismissal. 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.

Workers may also contact their Union for advice if they consider that they may have been dismissed in breach of the law.