Employment Disputes - Part 4A: Handling Ill or Injured Employees – Workplace Injuries

Posted by Malcolm Campbell on 06 February 2019
Employment Disputes - Part 4A: Handling Ill or Injured Employees – Workplace Injuries

Dealing with injured employees can be a minefield. There are a raft of issues to consider - so much so that employers often feel paralysed to take any action. This can lead to inaction or worse still, the creation of a role that doesn't really exist and isn’t really needed. Employers can end up being so distracted in trying to avoid a claim that focus is lost on how to properly manage the situation.

While attention needs to be paid to the risk of claims such as General Protections, Unfair Dismissal, Discrimination and the often overlooked reinstatement of a dismissed injured worker, by understanding the basics of the law regarding injured workers a proper and proactive plan can be put in place that is to the benefit of both the employer and employee.

The starting point is for employers to be aware of their common law and statutory (e.g. WHS) obligations to provide a safe environment of work and to take reasonable care to protect their employees from foreseeable injury in the course of their employment.

Therefore, in addition to all of the obvious 'big ticket' issues (training, induction, inspection & maintenance of machinery etc) employers must ensure that all employees are medically fit to safely perform their duties. While employees must follow lawful and reasonable directions of their employers, including when it comes to workplace health and safety and the provisions of a safe environment of work.

Workplace Injury

In NSW, Part 8 of the Workers Compensation Act 1987 (NSW) deals with the protection of injured workers from dismissal. Section 240 (2) defines an "injured worker" as a worker who receives an injury for which the worker is entitled to receive compensation under the Act or the Workers' Compensation (Dust Diseases) Act 1942 (NSW).

If an employee is an "injured worker" then they are afforded the protections from dismissal under Part 8 of the Act.

It is important to know whether the employee is an injured worker for two reasons:

  1. section 248 makes it an offence to dismiss an injured worker for reason of their injury, while they are unfit for duty due to the injury, within 6 months of the worker becoming unfit for duty. The maximum penalty is a fine of $11,000.00;
  2. section 241 entitles an injured worker who has been dismissed because they are not fit for employment as a result of injury  to apply to the employer for reinstatement to their former role (or another role not more advantageous). If the employer does not reinstate the worker, the worker may apply to the NSW IRC (Industrial Relations Commission) for a reinstatement order. Further, if the order is granted, the NSW IRC can also order that the dismissed injured worker's service be treated as  unbroken from the date of dismissal to the date of reinstatement (section 246). Unless special circumstances exist, that application must be made by the worker within 2 years of the dismissal (section 242).

In our next instalment of our Employment Dispute series, Part 4B – Handling Ill or Injured Employees – Non Workplace Injuries, we’ll look at non-workplace injuries and how best to manage related leave. You can catch-up on earlier articles in this series here.

If you have concerns about handling workplace claims, need help creating new policies and procedures or if you need advice or assistance regarding an Employment Law issue, please contact us and we can provide you with advice tailored to your specific situation.