Workers Comp not included in temporary absences from work under Fair Work Act
You are here:Common sense appears to have prevailed with one aspect of Fair Work protections for sick and injured staff members.
Background
The Fair Work Act continues an offence for dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by regulations. In general, this is an absence of up to 3 months in any 12 month period, where the employee was on sick leave or carers leave. The 3 month period is extended where the employee remains on (paid) personal/carers leave.
In Lee v Hills Before & After School Care Pty Ltd [2007] FMCA 4, Magistrate Raphael decided that workers compensation is a form of paid sick leave, thereby making it very difficult to ever terminate an employee on workers' compensation. See previous article.
Change under Fair Work Act Regulations
At the time of our previous article on this subject, we believed the decision would be unlikely to be left to stand. This has now been confirmed, with the new Fair Work Regulations maing clear that absences for workers compensation do not constitute temporary absences from work due to illness or injury.
So common sense appears to have prevailed.
ER Strategies Advertorial - terminating sick or injured workers can be a legal minefield. Whilst we believe most cases of injured or sick workers are genuine, we are also pragmatic enough to know that sometimes some will not be. We have been successful in helping many clients successfully deal with these difficult situations.
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