Can your employment be terminated after suffering a workplace injury?

If an injury happens at work, it’s not unusual for the person who is injured to take time off work or work reduced hours – either for recovery, treatment or assessment.  

MEJ Senior Associate, Suzanne Sharwood, says it can be a stressful time and unfortunately many people experience the added layer of stress worrying about the risk of being terminated for missing work. 

“It’s important to know that an employer can’t fire a worker simply on the basis of a workplace injury,” says Suzanne. 

There are protections under the Fair Work Act 2009 (‘FWA’) and the Workers Compensation Act (1951) for injured workers. This means they are not allowed to terminate a worker who has taken temporary leave due to injury, and that they must keep an injured worker’s position open for six months. 

If an injured worker can no longer perform the inherent requirements of their job or the termination of an injured worker is unrelated to the workplace injury (for example, for misconduct or poor performance), the issue becomes more complex. A worker may still be able to challenge the termination, including under the unfair dismissal provisions in the FWA.   

“Employers have an obligation to consider reasonable adjustments in the workplace for an injured worker, and need to play an active role in a worker’s return to work plan,” Suzanne explains. 

If you have suffered a workplace injury, contact the specialist workers compensation team at MEJ. Our lawyers are knowledgeable, compassionate and dedicated to providing expert legal advice to injured workers.