Dismissing an employee because they suffered a workplace injury is unlawful in most circumstances. Workers' compensation laws in every state and territory prohibit termination within a protected period after a workplace injury.
Last verified: 21 May 2026Dismissing an employee because they suffered a workplace injury is unlawful in most circumstances. Workers' compensation laws in every state and territory prohibit termination within a protected period after a workplace injury.
Dismissal due to a workplace injury is unfair if it occurs during the protected period under workers' compensation legislation (typically 6-12 months depending on the state), if the employer failed to provide suitable alternative duties, or if the employer did not follow the return-to-work process. Even after the protected period, dismissal may still be unfair if reasonable adjustments were not considered.
Strong general protections apply. Dismissing an employee for exercising their right to workers' compensation is an adverse action taken because the employee exercised a workplace right (s340 Fair Work Act). This carries reverse onus of proof — the employer must prove the injury was not a reason for dismissal.
The employer must: (1) comply with the workers' compensation protected period in their state, (2) work with the employee and their treating doctor on a return-to-work plan, (3) provide suitable alternative duties where possible, (4) maintain the employment relationship during recovery, (5) only consider dismissal after the protected period and after exhausting all return-to-work options.
State workers' compensation Acts (e.g., NSW Workers Compensation Act 1987 s248) provide strong protections against dismissal. The FWC has awarded maximum compensation in cases where employers dismissed injured workers to avoid their obligations.
21 days
From the date your dismissal takes effect. Strictly enforced.
26 weeks’ pay
For unfair dismissal. Consider a general protections claim (no cap) for stronger protection.
Workplace Injury is generally not a valid reason for dismissal. Termination for this reason may constitute unfair dismissal and may also breach general protections provisions under the Fair Work Act. The employer bears the reverse onus of proof to show this was not a reason for the dismissal.
Yes, provided you meet the eligibility requirements: you must have completed the minimum employment period (6 months for large employers, 12 months for small business) and earn below the high-income threshold ($183,100) unless covered by an award or enterprise agreement. You must lodge within 21 days.
Unfair dismissal focuses on whether the dismissal was harsh, unjust, or unreasonable (capped compensation at 26 weeks' pay). General protections claims apply when dismissal is for a prohibited reason such as discrimination, exercising a workplace right, or union activity. General protections have no compensation cap and the employer bears the reverse onus of proof.
You have 21 calendar days from the date your dismissal takes effect to lodge an application with the Fair Work Commission. This deadline is strictly enforced and extensions are only granted in exceptional circumstances.
The FWC can order reinstatement (getting your job back) or compensation of up to 26 weeks' pay. The amount depends on factors including how long you worked there, your remuneration, efforts to find new employment, and any misconduct that contributed to the dismissal.
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FairWork Mate is an independent commercial service. We are not affiliated with, endorsed by, or associated with the Fair Work Ombudsman, the Fair Work Commission, or any Australian Government agency. Content is general information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.
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