Laws protect injured and sick employees
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.
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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.