If you are injured at work, the last thing you want to do is spend your recovery time learning about your legal rights and entitlements. Unfortunately, workplace rules can be complicated – and seeking answers to some basic questions may prove difficult.
The first thing you may want to know is whether you can take time off from work.
If the injury is serious, or the recovery period draws-out, you may wonder about your eligibility to receive compensation so as to meet your basic needs.
If your employer attempts to terminate your employment during this time, it is very important to understand the basic legal protections and entitlements afforded to you.
We have put together a simple outline of your most important workplace rights so that you can provide for yourself and your dependents during this difficult time.
Workplace Injuries and Taking Leave
If you are injured at work, the most important thing to do is to give yourself adequate time to recover so that you can ‘get back on your feet’ as soon as possible.
Under the National Employment Scheme (NES) you may be entitled to certain minimums as they relate to taking time off of work due to illness or injury.
Full-time employees are entitled to a minimum of 10 days of paid sick leave each year, while part-time employees’ leave is calculated on a pro rata basis, and casual employees are not eligible for annual leave or sick leave.
The minimum entitlement to paid sick leave is 10 days leave per year which accrues on a progressive basis according to the number of ordinary hours work and can accumulate year to year.
Once your accrued paid leave runs out, you can continue to take unpaid leave for up to three months before your employer can terminate you. At this stage, your employment may continue to be protected in a number of ways (see below).
To take sick leave you will usually need to provide your employer with evidence of your injury, for example, in the form of a doctor’s certificate.
Workers Compensation
Workers compensation is a special type of insurance that all employers in Australia are required to take out to cover their workers and themselves.
Workers compensation legislation differs from state to state. In NSW and SA, you must first notify your employer that you have sustained a work-related injury or illness with the relevant details (see https://www.sira.nsw.gov.au/theres-been-an-injury/what-to-do-first). You will then have up to six months to make a workers compensation claim with the relevant insurer.
Returning to Work
All employers are required to have a return to work program that complies with the State Insurance Regulatory Authority (SIRA). These programs are formal policies that outline how an employer will assist an injured employee return to work after their injury.
Employees have a number of rights under these programs, including the ability to nominate their own doctor, undergo continued employment that is the same or equivalent to their pre-injury employment (where practicable), and be involved in the development of their plan.
Dismissal
An injured worker is afforded protections from termination under the workers compensation legislation and the fair work legislation. The extent of the protections will depend on whether the worker is fit to perform the pre-injury job and the reason for the termination.
You employer cannot terminate you because you are absent from work due to an injury or illness. Such an act would be in breach of a ‘general protection’ afforded to you under the Fair Work Act. You may also have other rights under Federal legislation relating to disability discrimination and unfair dismissals.
If you were dismissed because you were unfit for employment as a result of your injury you may wish to make an application for reinstatement if you are fit for employment. This application must be made within 2 years of your dismissal taking effect.
JFMAndreyev assist employees with understanding your rights under the Fair Work Act. Call us on (02) 9199 8597 or email us to discuss the next steps.
The information contained in this post is current at the date of editing – 6 November 2023.
