Posted on 18 Mar 2026

Unable to Return to Pre-Injury Duties in NSW? Suitable Duties, Payments & Termination Rights Explained

What are suitable duties in NSW?

In NSW, ‘suitable duties’ (also called ‘suitable employment’) are tasks given to you when you have some capacity for work but can’t return to your pre-injury duties. The work must fit within any restrictions on your Certificate of Capacity.

Under Section 32A of the Workers Compensation Act 1987, suitable employment is work you are ‘currently suited’ to perform.

You don’t need to be fully recovered before returning to work. If your doctor says you can do some duties, you’re expected to make reasonable efforts to participate in suitable employment.

How are suitable duties determined?

When determining what duties are suitable for you, the law requires your employer and insurer to look at:

Your medical capacity: The specific restrictions on your Certificate of Capacity e.g. limits on how much you can lift or how long you can sit for.
Your personal profile: Your age, education, skills, and previous work experience.
Rehabilitation plans: Any formal injury management or return-to-work plans developed by your insurer or workplace rehab provider.

Is my employer obligated to find me suitable work?

Your employer isn’t simply doing you a favour by offering light or modified duties. Under SIRA’s Guidelines for Workplace Return to Work Programs, employers are required to participate in the return-to-work process and make reasonable efforts to support injured workers.

This usually involves considering suitable or modified duties that align with your doctor’s restrictions and your Injury Management Plan.

While employers aren’t always required to create a new role if suitable work isn’t available, they must cooperate with the injury management process. If they ignore your medical restrictions, fail to engage in return-to-work planning, or refuse to participate in the process altogether, they may be in breach of Section 49 of the Workplace Injury Management and Workers Compensation Act 1998.

Can my employer give me any task as ‘suitable duties’?

Your employer cannot simply give you any task to tick a box. The law provides three main protections:

Meaningful work: Duties must be useful and serve a purpose. They cannot be token tasks or busywork designed only to keep you at your desk.
Dignity: The work must not be demeaning or disrespectful to your professional standing.
Qualification: You cannot be forced to perform work for which you are not qualified or physically capable of doing.

However, it’s important to note that work can be classified as ‘suitable’ for you even if:

The work isn't currently available at your specific workplace.
The type of work isn't generally available in the broader job market.
The tasks are completely different from your pre-injury job.
The role is located elsewhere (though it must still be reasonably practical to travel there).

What happens if I refuse suitable duties?

If your employer offers you a role that fits within the restrictions on your Certificate of Capacity and you refuse it without a valid medical reason, the insurer can take the following steps:

Warning notice: You will receive a formal Notice of Warning stating that you are failing to meet your return-to-work obligations.
Payment suspension: Under Sections 48 and 48A of the Workplace Injury Management and Workers Compensation Act 1998, you’re only entitled to weekly payments if you participate in the return-to-work process. If you don't comply within a set period (usually 14 to 28 days), it’s possible for your weekly payments to be suspended. You will not be back-paid for the time you were suspended.
Termination of payments: If you consistently refuse to participate in a return-to-work plan or suitable duties, the insurer can permanently cease your weekly wage benefits.

How to challenge unsuitable or unsafe duties

If you find yourself in a stand-off with your employer or you feel the duties offered are unsafe, demeaning, or outside your medical capacity, follow these steps to protect your claim:

Ensure your GP has been clear and specific about your limitations. If a job description exceeds what is written on your certificate, you have a medical basis to decline it.

Contact the insurer immediately. You can request that they appoint an Injury Management Consultant (IMC) or an external workplace rehab provider to perform an objective assessment of the role.

Both injury management consultants and workplace rehabilitation providers are experts who act as mediators between you and your employer. They can visit the workplace, assess the physical or psychological demands of the role, and issue formal recommendations that the employer is expected to follow.

If the insurer or employer remains uncooperative, you can escalate the matter to SIRA by calling 137472 or lodge a dispute with the Personal Injury Commission (PIC). A legal ruling from the PIC ensures your weekly payments aren’t unfairly suspended while your employer is the one blocking your return to work.

Want free legal help?

In NSW, the Independent Review Office (IRO) covers your legal fees — so you can get free, expert support for any aspect of your claim. Whether you want to challenge an insurer’s decision about your work capacity, dispute ‘suitable’ duties, or figure out if your termination was legal, we can help at no cost.

Find out how the IRO lets us help you for free

How much will I be paid on suitable duties?

In NSW, if suitable duties pay less than your pre-injury job, workers compensation fills the gap — but not dollar-for-dollar; it follows a specific legal formula.

How weekly payments are calculated

The insurer calculates your payment based on the difference between your Pre-Injury Average Weekly Earnings (PIAWE) and your current earnings. The percentage you receive depends on how many hours you work.

Weekly payments change over time depending on how long you’ve been on benefits:

Period	Benefit rate	Requirement to stay on benefits
0 – 13 weeks	95% of PIAWE (up to the NSW statutory cap of $2,604.80 (iCare weekly payments guide).	You must be certified unfit for your pre-injury role.
14 – 130 weeks	80% (or 95%)	Weekly payments drop to 80% if you aren't working. They stay at 95% only if you work 15+ hours per week.
131 – 260 weeks (2 ½ years)	80% of PIAWE	Payments stop unless the insurer determines that you have no work capacity and this is likely to continue, or you work 15+ hours and earn at least $240 per week (SIRA Workers Comp Benefits Guide).
After 260 weeks (The five-year limit)	80% of PIAWE	Payments cease for almost everyone. Only those with 21% or more Whole Person Impairment (WPI) can continue receiving payments.

Example calculation: How payouts work in practice

Let’s say your PIAWE were $1,500 and you have returned to suitable duties for 20 hours a week earning $600:

The formula: (95% of $1,500) - $600.
The calculation: $1,425 - $600 = $825.
Your total weekly income: $600 (wages) + $825 (workers compensation) = $1,425.

What changed under the February 2026 reforms?

In February 2026, the NSW Parliament passed the Workers Compensation Legislation Amendment (Reform and Modernisation) Act. These changes specifically target long-term claims and psychological injuries to focus on faster returns to work.

If you are currently unable to return to your pre-injury duties, there are three major updates you need to know:

Stricter work capacity assessments: Insurers now have expanded powers to determine your earning capacity based on the general labour market. This means they can reduce your weekly payments by claiming you could be working in a different role elsewhere, even if your current employer hasn't offered you that job.
Higher WPI thresholds for psychological injury: For psychological injuries on or after 1 July 2026, you will need at least 25% WPI to stay on benefits past 130 weeks. This is scheduled to rise again to 28% in 2029. (Note: The threshold for physical injuries remains at 21%).
The ‘Intensive Return to Work’ safety net: If you don't meet the minimum WPI but are still unfit for your old role at the 130-week mark, you may be eligible for a new 52-week extension. This year provides continued medical and income support specifically to fund retraining or a transition to a new employer.

Can my employer terminate me if no suitable work is available?

In NSW, an employer can only terminate you if no suitable work is available, and they must follow strict legal requirements first. You cannot be dismissed just for being injured, particularly during the early stages of recovery.

Keep in mind, even if you are fired, your weekly workers compensation benefits will continue.

Termination rights summary table

Timeframe	Can you be terminated?
0–6 Months	No (if the reason is your injury).
6–12 Months	Yes, but only if all suitable duty options are exhausted. You have a right to apply for reinstatement if you recover within 2 years.
After 12 Months	Yes, if you cannot perform the inherent requirements of the job and no suitable work is practicable.

The six-month protected period

Under Section 248 of the Workers Compensation Act 1987, an employer cannot legally terminate you because you are unfit for work within six months of the injury.

If you are terminated during this window because of your incapacity, your employer can face significant fines, and you may be entitled to reinstatement.

It’s important to note that the six-month protected period doesn’t apply if:

You voluntarily resign or accept a redundancy.
You are terminated for misconduct (unrelated to your injury).
Your fixed-term contract expires naturally.

When you can legally be terminated

After the six-month protected period ends, an employer can legally terminate your employment if:

Inherent requirements: You can no longer perform the inherent requirements of your pre-injury role, even with reasonable adjustments.
No reasonably practicable duties: The employer has thoroughly explored all options for suitable work (including different roles, modified hours, or retraining) and can prove that no such work is available within the business.

If your employer has lawful grounds to terminate your employment, they must follow a fair process. This involves consulting with you, reviewing up-to-date medical evidence, and providing written notice.

What happens to your payments if you’re fired?

If you’re terminated from your job, your weekly workers compensation benefits will continue. Weekly benefits are paid by the insurer, not your boss, so the insurer will simply begin paying you directly.

Your entitlement to workers comp payments continues until you reach the 130-week or 260-week cut-offs, or you meet the minimum impairment threshold.

When should I speak to a lawyer?

While you can manage the start of your workers comp claims alone, the system becomes significantly more complex as your recovery progresses. Luckily, the Independent Review Office (IRO) covers free legal help with your NSW workers comp claim.

We strongly suggest speaking with a lawyer if:

You are approaching the 130 or 260-week cut-offs: These are the points where insurers often stop payments. A lawyer can help you secure a Whole Person Impairment (WPI) assessment to prove you meet the 21% threshold required to keep your benefits active.
The insurer is pushing you back too early: If you are being pressured to return to work before you are medically ready, a lawyer can dispute the insurer's decision and use independent medical evidence to protect your recovery time.
Your ‘suitable duties’ aren't suitable: If you are being assigned work that is demeaning, pointless, or physically unsafe, you don't have to just accept it. We can step in to ensure the role respects your dignity and stays within your doctor's restrictions.
You have been terminated: A lawyer can determine if your termination was lawful — and if it wasn’t, we’ll help you pursue reinstatement or compensation.