Laws pro­tect in­jured and sick em­ploy­ees

Mt Druitt - St Mary's Standard (East) - - NEWS - All copy pro­vided by Turner Free­man lawyers; turn­er­free­mannsw.com.au

STATE and fed­eral laws pro­vide a range of pro­tec­tions for work­ers af­fected by in­juries or ill­nesses.

Un­fair dis­missal pro­vi­sions, as well as work­ers’ com­pen­sa­tion, anti-dis­crim­i­na­tion and dis­abil­ity dis­crim­i­na­tion laws, all im­pose re­stric­tions on when and how an em­ployer can fire an in­jured staff mem­ber, whether or not that in­jury was suf­fered at work.

In NSW, work­ers’ com­pen­sa­tion laws pro­hibit a per­son from hav­ing their em­ploy­ment ter­mi­nated within six months of a work­place in­jury, where the pri­mary rea­son for their dis­missal is their ab­sence from work.

Fed­eral law also pro­vides gen­eral pro­tec­tion against los­ing your job due to ill­ness or in­jury, un­less the pe­riod of ab­sence is more than three months.

Send your le­gal ques­tions to legal­help@turn­er­free­man.com.au

Tune in to the Chris Smith Af­ter­noon Show on 2GB on Tues­days from 1.30pm where a spe­cial­ist lawyer will be avail­able to take ycoalulsr.

Em­ploy­ers who sack staff mem­bers due to ill­ness or in­ca­pac­ity also risk breach­ing rel­e­vant dis­crim­i­na­tion laws.

While an in­jured worker’s job may be ter­mi­nated validly, their em­ployer will need to demon­strate that the in­jury has had an ad­verse im­pact on their abil­ity to per­form in­her­ent re­quire­ments of the job, and that at­tempts to rea­son­ably ad­just the role were made.

Em­ploy­ers may also seek rea­son­able med­i­cal in­for­ma­tion if an em­ployee has a long-term ill­ness or in­jury, in­so­far as it is needed to as­sess whether the em­ployee can safely re­turn to work.

Be­fore ter­mi­nat­ing an in­jured worker, the em­ployer should have solid ev­i­dence of the em­ployee’s in­ca­pac­ity to work, such as an in­de­pen­dent med­i­cal as­sess­ment.

If the worker is able to demon­strate that they are able to per­form their pre­vi­ous du­ties and re­spon­si­bil­i­ties fol­low­ing their in­jury, the de­ci­sion to ter­mi­nate them can be found to be harsh and un­rea­son­able.

It is also ad­vis­able to reg­u­larly con­sult with in­jured em­ploy­ees re­gard­ing their sit­u­a­tion, al­low­ing the ex­am­i­na­tion of al­ter­na­tives such as trans­fer­ring the em­ployee to a less phys­i­cally de­mand­ing job, or mod­i­fy­ing their ex­ist­ing work.

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