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 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.
At the IRC Hearing, the employer argued that provisions of the (now repealed) Commonwealth Workplace Relations Act 1996 prohibited the worker from commencing “other termination proceedings”, and that the Fair Work Act 2009 “covered the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.
Another good resource is the online legal handbook (VIC) – it covers work injuries, unfair dismissal, discrimination e etc etc…
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