Unfair dismissal – is an absence on workers’ compensation an authorised absence?

If you employed a casual employee for one month before he or she was injured and went off work receiving workers’ compensation benefits for six months, would you think the employee could bring an application for  unfair dismissal if, when he/she was declared medically fit for work, you could not offer him/her (as a casual) any future work?

A recent case before Fair Work Australia has found that a period of absence by a casual employee on workers’ compensation counts as service for the purpose of determining whether an employee has performed the legislative minimum period of employment to bring an unfair dismissal application under the Fair Work Act 2009 (“the Act”)¹.

Section 73 of the Workers Compensation Act 1987 deems a report commissioned for the purpose of assessing permanent impairment to be medical or related treatment. This provision was relied upon by solicitors acting for injured workers to claim reimbursement of medico-legal reports under section 60. In the past, some firms adopted an approach whereby claims would be lodged at the same time for lump sum compensation and for the cost of the medico-legal report supporting the lump sum claim.

The Court of Appeal has confirmed that the law is careful in distinguishing the duty of care owed in particular relationships. The Court considered the duty owed to the employee of a labour hire company in Unilever Australia Limited v Pahi & Anor; Swire Cold Storage Pty Limited v Pahi & Anor [2010] NSWCA 149. This was not a typical labour hire case. The labour hire company designed, implemented and monitored the system of work. The Court of Appeal confirmed that previous authorities of the Court must now be read in light of the decision in Leighton Contractors Pty Limited v Fox; Calliden Insurance v Fox [2009] HCA 35.

It’s a tale of psychs, lies and videotape. For a PDF copy of this Latest Legal Learnings bulletin, click here.

For further information, please phone Partner Stewart Cameron +61 2 9293 5408 or email This e-mail address is being protected from spambots. You need JavaScript enabled to view it

In this edition, we consider a case where treatment records were crucial in reducing a whole person impairment assessment. For a PDF copy of this Latest Legal Learnings bulletin, click here.

For further information, please phone Partner Stewart Cameron +61 2 9293 5408 or email This e-mail address is being protected from spambots. You need JavaScript enabled to view it