Facing a permanent change in your physical or mental capacity after a workplace injury is stressful enough without the fear of losing your job. In Queensland, the law provides a safety net, but it does not offer a permanent guarantee of employment if you can no longer perform the “inherent requirements” of your role.
The “Protected Period”
Under Section 232B of the Workers’ Compensation and Rehabilitation Act 2003, an employer is prohibited from dismissing a worker solely or mainly because they are not fit for work as a result of an injury within 12 months of the injury occurring. If an employer terminates you during this window because of your incapacity, they may be required to reinstate you or face significant penalties.
The Concept of “Inherent Requirements”
Once the 12-month protected period ends, the legal landscape shifts. An employer can legally terminate employment if they can demonstrate that:
- You can no longer perform the inherent requirements of the position (the core duties that the job exists to fulfill); and
- No reasonable adjustments can be made to the workplace or the role to allow you to continue working safely.
Employers must act fairly. Before dismissing a worker, they should engage in a consultation process, review medical evidence and explore alternative roles within the company that may suit your new capacity.
Unlawful Termination vs. Fair Dismissal
Even after 12 months, you are protected by the Fair Work Act 2009 and anti-discrimination laws. A dismissal might still be considered “unfair” or “discriminatory” if:
- The employer did not follow a proper process.
- The medical evidence was ignored.
- The injury is temporary, and recovery is expected shortly after the 12-month mark.
What to Do If You Receive a Notice If your employer indicates they are considering termination, seek advice immediately. You may have grounds for an Unfair Dismissal or General Protections claim through the Fair Work Commission, or a human rights complaint if reasonable accommodations were not explored.
