Under Section 248 of the Workers Compensation Act 1987 (NSW), it is an offence to dismiss an injured worker within six months of an injury because the worker is not fit for employment. The worker cannot be dismissed within six months of the worker first becoming unfit for employment.
An employer is required by the workers compensation legislation to assist in rehabilitating the injured worker back to work. However, if the worker has not returned to their normal duties within six months, the employer can legally terminate the employment.
An injured worker who is dismissed on the basis that they are unfit for their job after six months can, within two years, make an application to the Industrial Relations Commission of NSW for reinstatement to their former position. If the worker is able to obtain a medical certificate which clears them fit to return to their pre injury duties, the worker can request reinstatement of their position.
Often employers do not terminate workers after six months and most make reasonable attempts to return a worker to their prior employment.
If however you are unfit to return to your pre injury duties and the employer is not willing to provide you with any other suitable employment then your employment at some stage is likely to be terminated.
If your employment is terminated, you continue to receive workers compensation benefits under the Workers Compensation Act. Workers’ compensation benefits do not cease if your employment is terminated or you are fired.
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