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      Can I be fired while on workers compensation?

      Quick answer

      No, but only for a certain amount of time. Your employer can’t fire you just because you made a workers compensation claim, but this safeguard lasts between 6-12 months.

      Once the ‘protected period’ expires, if you are unable to resume work, your employer has the legal right to terminate your employment if they choose to do so.

      It’s important to keep in mind that even during the protected period, your employer can still let you go if there are valid reasons that have nothing to do with your compensation claim. For example, if they don’t need your position anymore because it’s become redundant.

      If you’ve lost your job after a workers compensation claim, we suggest contacting the Fair Work ombudsman or an employment lawyer to discuss your rights.

      In depth answer

      In most cases, your employer cannot fire you within the minimum period set by state legislation (your ‘protected period’).

      During this period, your employer is obligated to support your recovery and help you return to work. As part of this they should:

      • Develop an injury management plan with you.
      • Comply with the injury management plan.
      • Provide suitable alternative work duties if you can do some work.

      Your employer can fire you once you’re outside the minimum period and they have met all their obligations to you. However, you’re still entitled to weekly workers compensation payments.

      You may have a common law damages claim if you were fired within your protected period or your employer failed to fulfil their obligations. This involves suing your employer for unlawful dismissal and can result in a substantial lump sum settlement. To find out if you have a claim, speak to one of our expert workers compensation lawyers today.

      Different laws apply in different states. Please choose your state below so we can show you the most relevant content.

      In NSW, your employer cannot legally terminate your employment less than six months after your injury or illness.

      Your employer may legally terminate your employment if you have been receiving Workers Compensation benefits for more than 6 months and your employer has met all their obligations to you. You will still be entitled to weekly Workers Compensation payments. These usually end after 130 weeks unless:

      • You have been assessed as having no current work capacity and this is likely to continue indefinitely, or
      • You work at least 15 hours per week and earn at least $155 and this is likely to continue indefinitely, and
      • You have completed an application for continued weekly payments after 130 weeks form and sent it to the insurer or
      • You are a worker with high needs.

      What if I’m in my probationary period?

      Your employer may legally terminate you within the 6 month protected period if you are within your probationary period. This will be a set time outlined in your employment contract and is usually between 3–6 months.

      If you are in your probationary period but unable to work due to injury or illness, there are still options available. Call us to speak to an experienced Workers Compensation lawyer today.

      Reinstatement

      NSW legislation permits fired workers to apply for reinstatement. You can apply to the Industrial Relations Commission if your employer refuses to reinstate you.

      To be reinstated you must prove that you were fired because your injury or illness made you partially or totally unfit for work. Your employer can avoid reinstatement if they can prove that your injury was not the ‘substantial and operative cause’ of your dismissal.

      Reinstatement carries strict time limits. You must apply to the Industrial Relations Commission within two years of being fired.

      In Queensland, your employer cannot fire you within 12 months of your injury or illness.

      You can ask your employer to return to your pre-injury job after 12 months. You’ll need a medical certificate showing you’re fit for the role. At this time, your employer may terminate you if you’re still unable to work. You can continue to receive Worker Compensation benefits even after termination. These will usually cease after 104 weeks, depending on your ongoing degree of impairment.

      Reinstatement

      You can apply for reinstatement through the Industrial Commission if your employer refuses to reinstate you after 12 months. The Commission can order your employer to reinstate you if it finds that you’re fit to work. You must submit medical evidence to support your claim.

      If you are not reinstated by the Commission, we can assist with a common law damages claim for unlawful dismissal. These claims often result in large lump sum settlements.

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