Termination and ACT Workers Compensation: Your questions answered

Can I fire you? It is a thorny question that permeates all workplaces when it comes to handling workers who have just been injured.

In October’s HR Breakfast Club Forum, BAL Special Counsel within Litigation and Dispute Resolution, Bill McCarthy, presented on issues around workers compensation and the rights of employers and their employees.

Some of the points Bill covered in his presentation included:

• Procedures around good workers compensation procedures. These include compliance issues around workers in the workplace and early injury notification forms.
• Additional considerations workplace dismissals included what procedures to follow, the protected period, light duty work restriction and worker entitlements.

The Workers Compensation Act 1951 (ACT) – What procedures Employers need to comply with.

When it comes to the Workers Compensation Act 1951(ACT), there are some compliance issues for employers.

To avoid any such compliance issues arising, Bill offered three key points around compliance workplaces should aim to uphold.

1. Employers should alert their workers compensation insurer by phone after becoming aware of a workplace injury, even if it has not been reported by an injured worker.
2. Enter the workplace injury in the register of Injuries and copy it electronically to the insurer.
3. Liaise with the insurer at the earliest opportunity to avoid being lumbered with the penalty for not giving the required notification within 48 hours. This particularly practical for any workplace, as many employers already pay a hefty premium for its policy of workers compensation insurance to cover any sought of claim that may arise.

How long does an employer have to keep a position open for an ill or injured worker?

The following considerations should be considered:

• There should never be an automatic assumption that employment ends because of a worker is absent due to long term injury or illness.
• The employer should consider statutory protections which protect all employees against a dismissal.

Statutory protections are generally found under the Fair Work Act 2009 (“the FWA”).

Section 351 of the FWA provides that an employer must not take adverse action against a worker because of their physical or mental disability unless taken because of the inherent requirements of the position concerned.

Absent on unpaid leave?

Workplaces and their employers must take care when completely dismissing employees from their workplace.

Section 35(2) of the FWA stipulates that:

• An employee must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Employer’s must not dismiss an employee who is absent for less than 3 months. Three months is exclusive of any paid sick leave period to the injury. It must be noted that the period on workers compensation does not extend the 3-month limit.

What procedures can employers follow when ending the employment of an injured worker?

Ending the employment of an injured employee can always be difficult, though these procedures should be upheld if employers which to ensure the dismissal is all above board.

1. An assessment of the worker’s future capacity for a return-to-work plan should be undertaken. 
2. The injured worker should be invited to respond to whether they can fulfil the inherent requirements of their job.
3. All current and up-to-date medical evidence from the worker regarding their fitness should be requested and placed on file.
4. From the injured employees reports any reasonable adjustments should be made as employers are in most cases obliged to make these changes.

What entitlements are injured workers eligible for?

Restricted Work and Light Duties

When an injured employee has been approved by a medical profession to undertake restricted duties – employers should avoid (1) pushing the worker beyond the set restrictions, and (2) secondly do not allow the worker to push themselves beyond the restrictions to resume their regular duties too fast.

Notably, there is no set definition of ‘light duties’ in any relevant ACT legislation. Thus, employers should take great care in monitoring and ensuring their employee is not pushed or pushing themselves beyond the set restrictions made by the doctor.

What are the worker entitlements when ending employment of a worker with long term medical issues?

Worker entitlements around long term employment of a worker suffering with a long-term medical issue is something employers should consider when thinking about ending their employment.

1. Period of Notice?

If the employer decides to terminate the worker while on workers compensation, the worker is entitled to be paid out their notice period.

2. Redundancy – the FWA (s 119)

According to section 119 of the FWA entitlement of termination is at the employer’s initiative because employer no longer requires the job done by the injured worker. Redundancy may not be payable if termination is around their ‘workers compensation’ incapacity.

3. Reinstatement?

Employers should take note of any case of reinstatement made by past employees.

Currently, the Industrial Relations Commission (NSW) allows workers to apply for an order for reinstatement if the worker is terminated due to a work injury and later was found fit to return to their pre-injury duties. Application must be made within 2 years of their termination.

Though it must be noted that no similar legislation exists currently in the ACT.

To register for future HR Breakfast Club forums, visit our monthly forum page and register to attend. If you have any questions or wish to discuss your circumstances with a lawyer, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.

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