This month Bill McCarthy, Special Counsel Litigation & Dispute Resolution, BAL Lawyers, spoke about the complexities of the workers compensation regime and when an injured employee’s employment can be terminated.

What are some Employer key obligations under the Workers’ Compensation Act 1951 (ACT)?

Employers need to:

  • Display an Information Summary Notice at the workplace;
  • Maintain a Register of Injuries; and
  • Notify the insurer of workplace injuries within 48 hours.

What are the consequences of not notifying the insurer within 48 hours?

If the employer does not give notice to the insurer within 48 hours of becoming aware of the injury, the employer becomes directly liable to pay weekly compensation to the worker until the employer gives the injury notification to the insurer.

When an employer is alerted to an employee’s injury, best practice is to:

  • Alert the insurer by phone;
  • Enter the workplace injury into the Register of Injuries and copy this entry electronically to the insurer; and
  • Liaise with the insurer at the earliest opportunity to avoid being penalised for not giving the required notification within 48 hours.

What is the ‘protected period’?

In NSW, under its workers compensation legislation, it is a criminal offence for an employer to terminate an injured worker’s employment within 6 months of when the worker first became unfit for their pre-injury job. This is referred to as ‘the protected period’.

No such ‘protected period’ exists in the ACT. However, best practice is to observe a similar ‘protected period’ even if it is not enshrined in our legislation.

What if someone is chronically unwell, but not in receipt of workers compensation? 

The Fair Work Act provides that an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury.  However, it is not a temporary absence if the employee’s absence extends for more than 3 months or the total absences of the employee, within a 12-month period have been more than 3 months.

Caution should still be exercised when seeking to terminate an unwell employee. The employer may still be subject to an unfair dismissal claim, a general protections claim or a disability discrimination claim.

Q & A Corner

Q: If an employee is on a graduated return to work plan (still receiving workers compensation) and their employment is terminated, will they still continue to receive workers compensation?

A: Yes, workers compensation extends beyond the termination of the employee.

For more information about a particular employment issue, contact us today.

Further Resources:

Coming Soon!  Can I Fire You? Podcast with Bill McCarthy

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