At Bourke Legal, we often get questions from injured workers worried that their employer might fire them after a workplace injury.
Unfortunately, some employers aren’t supportive when you get hurt at work. It’s important to know your rights so you’re protected during your recovery.
If you’re worried about losing your job after getting injured at work, this guide is for you.
What Does the Law Say?
In New South Wales, Section 248 of the Workers Compensation Act 1987 says that if your employer fires you within 6 months of becoming unfit for work due to a workplace injury, they are breaking the law.
This law helps protect you while you’re recovering and trying to get back to work. Sometimes, you might need time off to heal, see a doctor, or get other treatment.
Let’s Break It Down with an Example
Take Jill, for instance. She’s a teacher who made a Workers Compensation claim for psychological injury because of bullying and harassment by the Principal at her school. At first, she only needed some counselling and was able to keep working full hours. But after a few months, her symptoms didn’t get better, and her doctor issued a Certificate of Capacity saying she was unfit for work.
Under the law, Jill would have 6 months to get treatment and try to return to her full duties. If her employer tried to fire her within that 6 month period, they’d be guilty of an offence.
What Happens After 6 Months?
Unfortunately, if more than 6 months pass and you’re still unable to work, the protection no longer applies.
Often, your employer will send you to see an independent doctor – a Psychiatrist for a psychological injury or an Orthopaedic Surgeon for physical injuries. This doctor will decide whether you can return to work.
If that doctor says you can no longer work in your role, your employer is within its rights to terminate your employment.
Are There Any Other Legal Avenues Available?
If your employment is terminated in a way that is harsh, unjust, or unreasonable, you may be able to bring an unfair dismissal claim or general protections claim in the Fair Work Commission.
It is important that you seek advice in relation to these potential claims as soon as possible, as these claims must be made within 21 days of the date of your termination – acting quickly is crucial!
At Bourke Legal, we can help with your Workers Compensation claim and any disputes or claims arising from that claim. We aren’t employment lawyers, which means we can’t advise you in relation to issues arising between you and your employer (for example, a dispute between you and your employer regarding unfair dismissal, disciplinary actions or redundancy offers). If you need that type of assistance, we are more than happy to provide an appropriate referral to a lawyer with employment law expertise.
Any Final Tips?
Sometimes, employers pressure you in other ways. Check out our related blogs and podcasts:
- My employer wants me to use sick leave instead of making a claim. What should I do?
- Help! My employer is pressuring me not to make a workers’ compensation claim
What Should You Do?
If you are suffering from an injury caused by the actions of your employer, get in touch with us today. We can help you challenge a decision that you are not entitled to Workers Compensation or make a claim for lump sum compensation on your behalf.
Give us a call on 1300 026 875 or contact us via our website.