Termination of an injured worker who has been absent from work because of prolonged illness or injury is not a simple matter. Injured or ill workers are protected by several pieces of legislation, including Federal unfair dismissal legislation, state/territory workers compensation legislation, state/territory anti-discrimination legislation, and federal disability discrimination legislation…
WorkCover and termination of employment – overview
Broadly, the intent of workers compensation legislation throughout Australia is to accommodate an injured worker’s return to work after a workplace-related injury or illness, usually through the establishment of an appropriate rehabilitation program.
Overview of the relevant legislation in Australia re the termination of employment (and rehab) of a worker who is absent on workers compensation.
Victoria
An employer is required to keep a position open for an injured worker for at least 12 months from the date of the injury.
In addition, an employer must prepare a return-to-work program for any injured worker off work for 20 days or more and regardless of the size of the business.
NSW
Under the NSW workers compensation legislation, an employer cannot terminate an injured worker within six months of being injured, if the reason for the termination is due to the injured worker’s absence on workers compensation.
An employer must have a workplace rehabilitation program and a written return-to-work plan for an employee incapacitated for more than 12 weeks.
We believe the new legislation remains unchanged in this regard.
Queensland
Under the QLD workers compensation legislation, the employer must not dismiss an injured worker within 12 months after he or she becomes injured, solely or mainly because the employee is not fit for employment in a position because of the injury.
An employer must take all reasonable steps to provide rehabilitation and suitable duties to injured workers. Employers with 30 or more employees at a workplace must appoint a fully-trained and WorkCover-accredited rehabilitation coordinator and have a rehabilitation policy and procedures in place.
South Australia
An employer/company with less than 10 employees is required to keep a position open for an injured worker for 12 months. An employer with 10 or more employees is required to keep a position open indefinitely.
The position must be employment for which the worker is fit and, so far as reasonably practical, the same as or equivalent to the position in which the worker was employed immediately before the incapacity. If the employer does not make a suitable job offer, heavy penalties may apply. The WorkCover Corporation is obliged to prepare a rehabilitation plan after three months, which is binding on both the worker and the employer.
ACT
As part of the Injury Management Process, an employer must provide for suitable employment after an injury has occurred where a request for work is received within six months of injury, and take part in vocational rehabilitation for the injured worker.
An obligation on the employer does not apply where the injured worker leaves the employment of their own; or, the employer ended the employment for a reason other than the injured worker’s absence on workers compensation; or where the employer cannot provide suitable employment.
Northern Territory
The employer must assist with any rehabilitation program and take all reasonable steps to provide suitable employment for the injured worker.
If the employer is unable to provide the injured worker with suitable employment they, in consultation with their insurer, must refer the worker to an alternative employer incentive scheme.
There is no time limit prescribed after which the injured worker may be dismissed (!)
WA
The employer of an injured worker who attains at least partial capacity for work within 12 months of the date upon which he/she becomes entitled to receive weekly payments of compensation, is obliged to provide the worker with a job as reasonably practicable to the job he or she was doing immediately before becoming entitled to receive weekly payments (they are a few exceptions).
After four consecutive weeks of incapacity, or 12 weeks of incapacity within a 12-month period, the employer must notify the Workers’ Compensation and Rehabilitation Commission, who in turn may require the injured worker to take reasonable steps to facilitate the rehabilitation of the worker.
Tasmania
The employer is required to keep the position open for the injured worker for 12 months, unless it is not practicable to do so or a reason for the position no longer exists. Arrangements to make available suitable alternative duties is also the duty of the employer.
Where incapacity exceeds 14 days, the employer is required to prepare a return-to-work plan and employers with more than 20 workers are required to prepare and display a rehabilitation policy.
You can find the relevant legislation by state on our FAQ page or under our resources (state by state).
On a sarcastic note we can’t help but to re-quote some of the insane things Mr Pearce had to say about NSW injured workers and the NSW workers comp scheme…
‘We want our scheme to aspire to best practices and … that better assists workers in returning to work and rebuilding their lives
Pearce said that the cost of work injury damages was another issue ‘significantly hampering’ the scheme’s optimal performance, including in the RTW area.
‘Lump sum compensation, particularly fault-based, is expensive and wasteful and results in inferior health and return-to-work outcomes for workers,’ he said.
‘I refer to common law claims as opposed to statutory claims. Common law claims are provided for under the legislation in cases where the whole person impairment of the person involved is over 15 per cent. However, work injury damages claims are fault-based claims insured in a system that provides for no-fault insurance.’
‘Of the claims that are currently receiving weekly benefits, 38 per cent have been receiving them for three years or more.’
‘Once workers have reached this point, experience tells us it is highly unlikely that they will return to work and so the scheme ends up with a rump of claims from claimants who … are not likely to leave the scheme.’
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