Sacked injured workers can go to court

Further to some confusing discussions about the potential for workers compensation and employment laws to interfere, we came across this interesting legal case, which may help clarify some of the issues.

Sacked injured workers an go to court

In 2011, a judge ruled that injured NSW workers who have been dismissed from work (sacked) because of their condition are entitled to seek reinstatement through Fair Work – even if their application has been rejected by a federal tribunal.

The case

In 2005 a worker employed by ACI Operations Pty Ltd (trading as O-I Sydney) was injured at work. Following his injury, he returned to work on restricted duties, but after 3 years his employer “determined” that it was unable to accommodate his injury, and simply sacked him.

The injured worker, at the time,lodged a case with the Australian Industrial Relations Commission (now Fair Work Australia), stating that the dismissal was harsh (and unfair). The Commission (Fair Work) however found that the injured worker’s medical condition “rendered him unable to perform all the inherent requirements of his position”, and as such rejected his claim.

About one year later, the injured worker who had by then obtained a medical certificate stating that he was now fit for pre-injury duties, applied to his employer to be reinstated. With no luck, he then applied to the NSW Industrial Relations Commission (under Part 8 (ss240-250) of the State Workers Compensation Act 1987 -the old law) to be reinstated.

The injured worker’s employer tried to block his claim.

The hearing

At the IRC Hearing, the employer argued that provisions of the (now repealed) Commonwealth Workplace Relations Act 1996 prohibited the worker from commencing “other termination proceedings”, and that the Fair Work Act 2009 “covered the field”, rendering Part 8 of the NSW Act inoperative.

However  IRC President Boland found the Commonwealth Parliament was well aware of Part 8 when the Fair Work Act was implemented, and could have expressly invalidated the provision if it wished to.

President Boland also found that the Workplace Relations Act only prohibited Part 8 applications that alleged a dismissal had been illegal.

Boland said “[The worker’s] application is not founded on any unlawful termination, but rather on the basis [he] is now fit for employment”.

“Part 8 recognises… [a] worker’s circumstances may change and the worker may have recovered from the injury that led to dismissal.

“Some time may have passed since they were dismissed and the injury that led to the dismissal in the first place may no longer make them unfit for employment”

“There is no suggestion in Part 8 that the dismissal is to be regarded as unlawful.”

President Boland found there were no inconsistencies between Part 8 and any federal law, and that the worker should not be prevented from taking further action.

Read the full case: ACI Operations Pty Ltd v Field (2011) NSWIRComm 5 (18 February 2011)

We believe any injured worker who has been sacked (unfairly, unlawfully etc) needs to seek competent legal advice with a personal injury lawyer before proceeding with a claim, just in case there may be interference with the laws.


For more info about unfair dismissal, see our page injured workers and termination and employment issues

Another good resource is the online legal handbook (VIC) – it covers work injuries, unfair dismissal, discrimination e etc etc…


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10 Responses to “Sacked injured workers can go to court”

  1. On the Lawlink NSW site is the following:

    Q6. What can an employee do who is dismissed while on Workers Compensation?
    The employee may be able to file an unfair dismissal application or an Application for Reinstatement of Injured Worker.
    See: website
    It also contains Guide to Making an Application for Reinstatement of Injured Worker and Form 59 – Application for Reinstatement of Injured Worker

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  2. Q. I am currently off on workers’ compensation and have been dismissed. Am I entitled to bring an Unfair Dismissal claim?

    A. In these circumstances you may be entitled to bring an unfair termination claim or a disability discrimination claim. Independent legal advice needs to be obtained because there are a number of multi-jurisdictional issues which have to be considered which are tied up with awards, workplace agreements, certified agreements and contracts of employment to name but a few.

    See website

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  3. I just found some information about the VEOHRC in Victoria.

    “All persons who are a party to a dispute brought by a representative body must be named.The VEOHRC may decline to provide or to continue to provide dispute resolution if:

    the alleged contravention occurred more than 12 months before the dispute was brought;

    the matter has been adequately dealt with by court or tribunal;

    the matter involves subject matter that would be more appropriately dealt with by a court or tribunal;

    a person has initiated proceedings in another forum,


    having regard to all the circumstances, the VEOHRC considers it is not appropriate to provide or to continue to provide dispute resolution.”

    This came from the website called “The Law Handbook” published by the Fitzroy Legal Service in Mebourne.

    Note that in the first paragraph it says that the VEOHRC MAY decline to provide dispute resolution if : (and then go to point number four) “a person has initiated proceedings in another forum”

    It seems that both avenues are possible, general protections or unfair dismissal, and then discrimination. Both avenues offer dispute resolution and possible compensation, but are for quite different issues, and are covered by different law acts in Victoria.

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  4. Here’s a doozy: I was constructively dismissed by and discriminated against by three consecutive employers. I now feel too frightened of ANY workplace to return to work.

    The cumulative effect of these experiences is ignored by Worksafe and Workcover IME’s.

    My only safe option now is self employment. Pity they don’t offer the WISE program to injured workers to start their own businesses. My employer received up to $26,000 in the past twelve months as an incentive from Worksafe to employ me after I was injured in a previous unsafe workplace.

    Why won’t Worksafe pay the injured worker to start their own safe workplace?

    Makes perfect sense to me and would save everyone money in the long run.

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  5. The Workers Compensation Act 1987 (NSW) mentions to reinstate the employer immediately. My question is what is the time frame for immediately?

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  6. Hi I have taken my reinstatement of an injured worker to the IRC of NSW as my employer did not reinstate me. The IRC and set my matter down for a conciliation conference can anyone tell me about the process or what to expect in the days leading up to the conference?

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    • @ John – there is some information about the conciliation process of the IRC website .

      Just as a general note of precaution: we believe it’s really important to seek legal advice in such a matters as reinstatement and unfair dismissal appeals can interfere with your workcover claim.

      As stated on our page “employment issues” under section dismissal :with re to injured workers, be very very careful when considering an application for unfair dismissal, as it may have very serious and nasty consequences for the workcover claim, in particular any common law damages claim(s). Remember that you are basically proving to the court, and therefore to your employer and the workcover insurer that you CAN WORK. Please read between the lines. In other words always seek good legal advice (personal injury lawyer) before filing for unfair dismissal.

      There is also some useful info on our new page: injured workers and termination


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      workcovervictim3 May 5, 2013 at 8:17 am
      • Thank you for your reply and the links. In regards to my workers compensation claim it has been finalised and closed by the insurer so does that still affect it?

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