When employees in South Australia suffer injuries at work, they may be eligible for workers’ compensation to cover medical expenses and lost wages. 

However, this raises a critical question: Can an employer fire an employee who is receiving workers’ compensation? 

In South Australia, this is a complex issue with legal implications for both employees and employers. Understanding the protections and limitations in place can help injured employees protect their rights.

In this article, we will go over the answer to this question and important things you need to know.

Protections Against Termination for Injured Workers

Under South Australian law, employers have certain obligations to employees who are on workers’ compensation. 

These obligations include a duty to support the employee’s return to work, provided it is safe and reasonable to do so. 

Terminating an employee purely because they are on workers’ compensation is unlawful and may constitute unfair dismissal. 

However, there are some scenarios in which termination might still occur legally.

Circumstances in Which Termination May Be Allowed

1. Inability to Perform Key Duties
   If an employee’s injury prevents them from performing the essential functions of their job, even with reasonable adjustments, the employer may explore options for termination. This situation typically arises if medical evidence suggests that the employee is unlikely to be able to fulfil their duties in the foreseeable future. Employers, however, are encouraged to consider other options before proceeding with termination, such as redeployment to a different role.
2. Business Operational Requirements
   In some cases, operational requirements may lead to a position becoming redundant. For example, if the business is undergoing restructuring, the employer may make a role redundant if it no longer exists within the organisation. In such situations, termination may occur as part of a larger operational decision unrelated to the employee’s injury.
3. Extended Absences Without Clear Return Date
   If an employee’s absence due to injury extends beyond a reasonable period and there is no clear indication of when (or if) they can return to work, an employer may consider termination as a last resort. Employers should consult with medical professionals to understand the likely recovery timeline and make every effort to accommodate the employee within the workplace before taking any action.

Legal Framework for Termination During Workers’ Compensation

South Australia’s Fair Work Act and anti-discrimination laws protect employees from unfair treatment based on disability or injury. 

Employers must carefully evaluate each case to ensure that any decision to terminate is justified and in accordance with the law. Terminating an employee solely due to their injury or the fact they are receiving workers’ compensation could be seen as discrimination and lead to legal consequences for the employer.

In South Australia, an employer is typically required to follow a set process that includes assessing whether the employee can be reasonably accommodated in their role or a similar position. The employer must also have clear evidence that the termination is fair and reasonable based on the employee’s ability to work.

Protections Under Anti-Discrimination Law

The Equal Opportunity Act 1984 (SA) prohibits discrimination against employees based on their disability, which includes injuries sustained at work. 

Employers are generally expected to make reasonable adjustments to accommodate an injured employee. 

Firing an employee solely because they have a disability or require time to recover from a work injury can constitute unlawful discrimination under this act.

What Employers Must Consider Before Terminating an Employee on Workers’ Compensation

Employers must follow several steps to ensure they comply with South Australia’s employment laws. Key considerations include:

1. Medical Evidence and Recommendations
   Employers must rely on credible medical evidence when determining whether an employee can continue to perform their job duties. This includes consulting with treating doctors or specialists and reviewing any rehabilitation assessments.
2. Reasonable Accommodations and Adjustments
   Employers are legally obligated to provide reasonable adjustments for injured employees. This could involve modifying the employee’s tasks, adjusting work hours, or providing ergonomic support. Termination should only be considered when all options for accommodation have been exhausted.
3. Return to Work Obligations
   Employers in South Australia have a responsibility to support injured employees’ return to work. This can include providing modified duties or a gradual return plan. Termination may only be justified if there is a legitimate operational reason or the employee cannot return to their role, even with adjustments.

Steps Employees Can Take If They Are Terminated While on Workers’ Compensation

If an employee on workers’ compensation is facing potential termination, they have legal options to challenge the decision. Here’s what they can do:

1. File an Unfair Dismissal Claim
   An employee may file a claim with the Fair Work Commission if they believe their termination was unfair. An unfair dismissal claim can help them seek reinstatement or compensation if the employer’s decision was unjustified.
2. Seek Legal Advice
   Consulting a workers’ compensation lawyer in South Australia can provide an employee with clarity on their rights and the best course of action. Legal professionals can help the employee understand whether their termination was lawful and assist in filing a claim if necessary.
3. Explore Discrimination Claims
   If an employee believes they were terminated due to their injury, they may have grounds to file a discrimination claim. The Equal Opportunity Commission in South Australia addresses complaints related to unfair treatment due to injury or disability.

How Our Workers’ Compensation Lawyers Can Help

Navigating the complexities of employment rights during a workers’ compensation claim can be challenging. 

Our workers’ compensation lawyers in Adelaide can help injured employees understand their rights and guide them through potential actions if they face termination. 

Legal advice can clarify the nuances of employment law, help assess the fairness of the termination, and determine if an employee is eligible for compensation or reinstatement.

We can offer support by:

• Evaluating Termination Claims
  Our lawyers can assess whether an employee’s termination was fair, legal, and based on valid business needs rather than discriminatory motives.
• Advocating for Rights Under Workers’ Compensation Law
  We can ensure the employee’s rights are protected and that the employer meets all legal obligations related to workplace injury and accommodation.

Conclusion

In South Australia, employees on workers’ compensation are protected from termination in most circumstances. Employers must demonstrate that any decision to terminate is fair, justified, and in line with legal requirements. 

If you or someone you know has been terminated while on workers’ compensation, get in touch with our team today by calling 08 8211 9932.

Our experienced Adelaide workers’ compensation lawyers are dedicated to protecting injured workers’ rights and ensuring fair treatment throughout the recovery process.