In Western Australia, an employer can terminate an injured worker’s employment, but only after 12 months from the date of injury has passed and specific legal requirements under the Workers Compensation and Injury Management Act 2023 (WA) have been satisfied. Workers are entitled to job protection during this period, and employers must provide written notice to both the worker and WorkCover WA at least 28 days before any dismissal takes effect.
Understanding your rights under the Act is essential to protecting your position and your livelihood. Whether you have been terminated, made redundant, or are concerned about returning to work, your entitlement to compensation is generally assessed from the date the injury occurred, not your current employment status.
Key Takeaways
- Employers cannot dismiss an injured worker within 12 months of their injury without complying with strict obligations under the Workers Compensation and Injury Management Act 2023 (WA).
- Employers must provide written notice to both the worker and WorkCover WA at least 28 days before any dismissal takes effect.
- Workers retain compensation entitlements regardless of their employment status at the time the claim is lodged.
- Job protection obligations are qualified by what is considered “reasonably practicable” in the circumstances.
- Obtaining specialist injury law advice as early as possible is strongly recommended.
Your Job Rights While on Workers’ Compensation in Western Australia
Where an injured worker has made a workers’ compensation claim, the claim has been accepted by the insurer, and the worker has regained partial or full capacity for work, the employer is generally required to allow that worker to return to their previous position or a comparable role. The Workers Compensation and Injury Management Act 2023 (WA) sets out this obligation clearly in its job protection provisions:
Under the Act, where a worker regains partial or full capacity for work within 12 months of becoming entitled to weekly payments, the employer is generally required to provide:
- the worker’s pre-injury position, if reasonably practicable; or
- if that position is not available or suitable, a comparable role that the worker is qualified and medically fit to perform.
What Are the Limitations of This Protection Under the Act?
This provision is broadly regarded as offering a degree of protection to injured workers, as it enables them to return to their former role within a 12-month window. However, workers should proceed carefully, as the section is significantly qualified by the words “reasonably practicable.” Employers have, on occasion, relied upon this qualification to argue against the obligation of keeping an injured worker’s position available for the full 12-month period. It is worth seeking advice early to better understand how this qualification may apply to your particular situation.
Critically, the section provides no ongoing protection to the worker once they have actually returned to work. There is nothing within the Act that prevents an employer from providing reasonable notice and terminating the worker’s employment upon their return. Injured workers on workers’ compensation have, in various documented cases, had their employment unlawfully terminated or their position removed during this period. Obtaining specialist injury law advice as early as possible is strongly recommended to help protect your rights and your position.
Where a worker has been dismissed on the grounds of serious or wilful misconduct, the employer is afforded protection under the Act and is not obligated to provide a return-to-work position for that worker.
It is also worth noting that where a worker was engaged in a temporary or acting capacity at the time of their injury, the employer’s obligation is to provide a position comparable to the worker’s substantive role, rather than the temporary or acting position they held at the time of the injury.
What Happens to My Position If I Return to Work But Cannot Continue?
The Act provides that a worker who attempts a return to work but cannot sustain it due to the injury should not be disadvantaged in their entitlement to compensation. This provision is generally interpreted to mean that a worker who attempts a return but is unable to sustain it retains their entitlement to compensation payments. Understanding how this section applies to your circumstances is an important part of protecting your rights throughout the recovery process.
Over time, the consideration of this issue has led to the development of the legal concept of the “benevolent employer.” This refers to situations where an employer provides a worker with modified or light duties, either out of goodwill, to manage their compensation liability, or through some broader workplace arrangement. In these circumstances, the nature of the employment offered is assessed as a matter of fact to determine what the worker is genuinely capable of earning following their injury.
Setting aside the concept of the benevolent employer, it is important to note that within the Western Australian jurisdiction, any period during which a worker returns to work and performs at full capacity is not counted toward the 12-month window within which the employer is required to keep the injured worker’s position available. This means that the clock on that protected period does not run whilst the worker is performing their duties at full capacity. Workers should be mindful of this distinction, as it can have a meaningful impact on how long their position remains protected following a workplace injury.
Workers’ Compensation and Termination: What Are Your Rights in Western Australia?
Unfortunately for workers, the short answer is yes, though this can only occur once 12 months from the date of injury has passed, as set out in the job protection provisions of the Workers Compensation and Injury Management Act 2023 (WA), and provided that specific administrative requirements have been met.
Under the National Employment Standards, an employer is permitted to terminate an employee whilst they are receiving workers’ compensation. In most circumstances, the employer will be required to provide the employee with written notice of their intention to end the employment relationship. However, pursuant to the Fair Work Act 2009, notice period requirements do not apply to employees who are casual, employed for a specific period or task such as a fixed term contract, engaged in seasonal work, working under a training arrangement for a set period other than as an apprentice, daily hire workers in the building and construction or meat industry, or weekly hire workers in the meat industry whose termination is dependent on seasonal factors.
In Western Australia, there is an additional layer of protection for workers in this situation. The Act requires that an employer notify both the worker and WorkCover WA before proceeding with dismissal.
- Employers must provide written notice of intention to dismiss to both the worker and WorkCover WA at least 28 days before the dismissal takes effect, and the notice must comply with the prescribed form requirements.
What Are Your Rights If Your Employer Dismisses You Without Proper Notice?
Where an employer proceeds with a dismissal that does not comply with the required provisions, the affected worker may acquire rights in relation to reinstatement or compensation, which can be assessed and determined by the relevant industrial tribunal. Case law in Western Australia has demonstrated that where an employer fails to follow the correct procedures prior to dismissing an injured worker, the dismissal may be found to be unfair. In such instances, the tribunal will consider factors including whether the worker was performing satisfactorily in their role prior to the dismissal and whether the employer met all of its procedural obligations under the Act. These decisions reinforce the importance of employers following the correct process when managing the employment of workers who are absent due to a workplace injury.
Workers who are covered by an award, enterprise agreement, registered agreement, or employment contract are encouraged to review their specific entitlements, as they may be entitled to different or additional notice of termination provisions when absent from work on workers’ compensation, including entitlements such as payment in lieu of notice.
Can You Still Claim Workers’ Compensation After Losing Your Job?
As a general principle, a worker’s legal entitlement to receive compensation arises from the date on which the disability or injury occurred, rather than from the date on which a claim is formally lodged. Established case law in this area has confirmed that where an injury arises in the course of and out of a worker’s employment, the entitlement to compensation is fixed at the time the injury giving rise to the liability was sustained. This principle continues to inform how compensation entitlements are assessed in Western Australia and provides an important foundation for workers who find themselves in uncertain employment situations following a workplace injury.
In practical terms, this means that a worker who suffers total or partial incapacity as a result of a workplace injury may still be entitled to make a workers’ compensation claim regardless of their employment status at the time the claim is lodged. This would apply equally to workers who have been terminated, made redundant, or who have resigned from their position. The key consideration is when and how the injury occurred, not whether the employment relationship is still ongoing at the time of the claim.
It is important, however, for injured workers to exercise caution if they have some capacity for work and transition from one employer to another, as such changes can have an impact on their compensation entitlements. Seeking specialist advice before making any employment decisions during this period is a prudent step.
Conclusion
Navigating workers’ compensation and employment rights in Western Australia can be complex, particularly when you are already dealing with the physical and financial pressures of a workplace injury. The law does provide protections, but they come with limitations that employers and insurers are well aware of. Knowing where you stand under the Workers Compensation and Injury Management Act 2023 (WA) is the first step toward making informed decisions about your situation.
If you have been injured at work, terminated, or are concerned about your return-to-work entitlements, seeking specialist injury law advice as early as possible is strongly recommended. The sooner you understand your rights, the better positioned you are to protect them throughout the claims process.
At Soul Legal, we regularly advise injured workers across Western Australia on their rights following dismissal while on workers’ compensation. Early legal advice can significantly improve your options and protect your entitlements.
FAQs
Can my employer fire me while I am on workers’ compensation in WA?
Yes, but generally only after 12 months from the date of your injury has passed and the employer has complied with the notice requirements under the Workers Compensation and Injury Management Act 2023 (WA).
Does my employer have to keep my job open after a workplace injury?
Generally, yes, for up to 12 months from when you first became entitled to weekly compensation payments. However, this protection is qualified by what is considered “reasonably practicable” in your circumstances.
Can I still claim workers’ compensation after being made redundant?
Yes. Your entitlement to compensation arises from the date the injury occurred, not from your employment status at the time the claim is lodged.
What notice must my employer give before terminating my employment?
Your employer must give written notice to both you and WorkCover WA. This notice must be provided at least 28 days before the dismissal takes effect.
What happens if I return to work but cannot continue due to my injury?
You generally retain your entitlement to compensation payments if your return to work is unsuccessful. The Act is designed to ensure you are not disadvantaged by attempting a return to work that ultimately proves unsuccessful due to your injury.
Rebecca Sorgiovanni is the Director of Soul Legal, a trusted Perth-based injury compensation lawyer with over two decades of experience representing injured clients in complex litigation and tribunals across Western Australia.
