If I make a workers compensation claim, is my employer allowed to terminate my employment?

Since 1926 workers in New South Wales have been afforded protection under the workers compensation scheme for payment of benefits when injured at work. The scheme provides, essentially, three areas of compensation. They are:

  • Weekly benefits of compensation (wages or part thereof) for periods of absence from employment
  • Payment of all reasonable and necessary treatment expenses
  • Lump sum compensation commensurate with the degree of impairment flowing from the injury sustained.

The workers’ compensation scheme has undergone significant modification since its introduction. Regrettably modification has become the buzzword for reduction in benefits. All of the modifications to the scheme over the years has been for the purpose of reducing the level of benefits available to injured workers.

As to the injured worker’s employment it remains, prima facie, unlawful for an employer to terminate an employee who has made a workers compensation claim or is off work receiving workers compensation benefits.

There is however an exception.

An employer has a positive obligation to do all that is reasonable to assist in the rehabilitation of the injured worker for the purpose of having them return to their employment. This includes but is not limited to working with rehabilitation providers, instituting injury management plans and providing restricted or limited duties if the worker is so certified.

However, should the injured worker be absent from employment for six months and during this period the employer has fulfilled their obligations so far as any rehabilitation or return to work management plan is concerned, then it is open to the employer to terminate the employment of the injured worker.

The termination of the injured worker’s employment does not disentitle them to continue to receive workers compensation benefits including weekly benefits of compensation (wages), payment of medical expenses and any lump sum compensation to which they are entitled.


Additionally, the termination of the injured worker’s employment does not disentitle them to sue the employer in negligence if such a claim is also available.

Brydens Lawyers are the experts in prosecution of all workers compensation claims. If you have been injured at work and even in receipt of weekly benefits of compensation and payment of medical expenses, you should still seek legal advice to determine what other claims may be available to you. For a free, no-risk consultation with one of our experts contact Brydens Lawyers without delay on 1800 848 848 or at brydens.com.au. At Brydens Lawyers – #WE DO workers compensation claims.