Injured at work? What are my rights and is my job safe?
The sad reality is there are over 100,000 work related injuries and illnesses reported each year and the majority of these injured workers are primarily concerned with their job security. Thankfully, the workers compensation legislation in NSW imposes several obligations on your employer to support your recovery after a workplace injury or illness.
We answer some frequently asked questions by Turner Freeman clients to help you understand your rights at work.
Does my employer have to provide me with suitable duties?
Suitable duties are designed to support your rehabilitation and encourage sustainable return to work outcomes. Your employer has a legal obligation to provide you with suitable employment to support your recovery after a workplace injury or illness, provided it is reasonably practicable for the employer to do so. The suitable work provided, must comply with your restrictions imposed under your most recent Work Cover Certificate of Capacity and must be the same as or equivalent to the work being performed at the time of the injury.
All employers have a return to work program in place to assist injured workers with their rehabilitation and this will describe how the suitable duties are to be implemented.
Your employer is not obliged to provide suitable duties if you voluntarily resign your employment or if you employment is terminated for reasons other than your injury and capacity for work.
Disputes may arise when the employer fails to offer or withdraws suitable employment. Where a dispute relates to an employer’s obligation to provide suitable employment, assistance can be sought from Work Cover, who has the authority to issue notices or penalties for non compliance with their legislative obligations.
Am I obliged to take the suitable duties been offered?
It is important to note, you too have an obligation as an injured worker to make all reasonable efforts to return to work in your pre-injury employment or alternative suitable employment. If you refuse an offer of suitable employment, the workers compensation insurer may have grounds to suspend your weekly compensation entitlements.
Can my employer terminate me if I can’t return to my pre-injury role?
Your employer must not dismiss you because of your work related injury within six months from when you first became unfit as a result of your injury or they will be subject to a monetary penalty under the workers compensation legislation.
In addition to a monetary penalty, if you are unlawfully terminated, you may be entitled to pursue an unfair dismissal action in the Fair Work Commission and seek either reinstatement or compensation. There is a strict 21 day limitation period within which to commence any unfair dismissal proceedings.
What happens to my workers compensation entitlements if I am made redundant or my employment is terminated?
Your workers compensation entitlements will not be affected if your employment ceases. The insurer will continue to make payment of your reasonably necessary medical and treatment expense and any weekly compensation benefits, if you continue to suffer a total or partial incapacity for employment as a result of your work injury.
How we can help
If you have been affected by a workplace injury and want to discuss your rights and entitlements under the workers compensation scheme, please don’t hesitate to call our office on 8833 2500 to arrange an appointment at no cost to you. Our workers compensation lawyers are Approved Legal Service Providers to the Workers Compensation Independent Review Officer (WIRO), which means we can apply to have all your legal costs funded by WIRO. This means there will be no out of pocket expenses payable by you.