Employers with workers who have been injured must provide the worker with the opportunity to recover at work by providing  Suitable Work . Suitable work needs to be provided when a worker is unable to immediately return to their normal duties after a work-related injury or illness.

s49(1) Workplace Injury Management and Workers Compensation Act 1998 

No

The requirements of Chapter 3 of the 1998 Act apply even when there is a dispute as to liability. 

s41A   Workplace Injury Management and Workers Compensation Act 1998 

Employers must provide suitable work unless it is not reasonably practicable to do so.

s49(3)(a) Workplace Injury Management and Workers Compensation Act 1998 

An employer is unable to dismiss a worker because the worker is not fit for employment because of the workplace injury, within the first 6 months of a worker becoming unfit

S248   Workers Compensation Act 1987 

If a worker is dismissed and is replaced within 2 years of the dismissal, the employer is required to inform the replacement worker that the dismissed worker may be entitled to be reinstated.

s247   Workers Compensation Act 1987 

Yes

s248(3) Workers Compensation Act 1987 

Suitable employment means work that is suited to the worker’s current abilities taking into account their capacity for work and, amongst other things, their medical condition, age, skills, work experience, place of residence and pre-injury employment.

Pre-injury employment means employment that is the same as, or equivalent to, the job that a worker was employed in before they sustained their injury or illness (see definitions in  s3 and  s96 , Workplace Injury Rehabilitation and Compensation Act 2013 )

Yes

s101 of the Workplace Injury Rehabilitation and Compensation Act 2013 

Workers’ Compensation and Rehabilitation Act 2003 s42 — Suitable duties are work duties for which the worker is suited, having regard to:

1. nature of the worker’s incapacity and pre-injury employment
2. relevant medical information
3. rehabilitation and return to work plan for the worker provisions of the employer’s workplace rehabilitation policy and procedures
4. worker’s age, education, skills and work experience;
5. if duties are available at a location other than the location in which the worker was injured — whether it is reasonable to expect the worker to attend the other location, and
6. any other relevant matters.

No

The employer has an obligation to provide rehabilitation, which includes suitable duties, while the worker is receiving workers’ compensation — s228 

Weekly payments stop when the worker’s incapacity stops, or after the worker has received compensation for 5 years, or when the maximum compensation payment is reached — Act  s144 ).

Yes

The employer must hold the worker’s former position open for 12 months (the employer must not dismiss the worker solely or mainly because the worker is not fit for employment in a position because of the injury within 12 months of the worker sustaining the injury) — Act  s232B .

Employer required to provide pre-injury position to injured worker if worker attains total or partial capacity within 12 months. If that job is no longer available, or worker can no longer perform, employer must offer a similar position for which worker is qualified, and capable of doing —  s84AA(1) Workers’ Compensation and Injury Management Act 1981

Employers must notify worker and WorkCover WA of any intention to dismiss the worker 28 days before the dismissal is due to take place —  s84AB .

Yes

12 months

Yes

s84AB 

Suitable employment is defined in  s4 of the Return to Work Act 2014 as follows:

In relation to a worker, means employment in work for which the worker is currently suited, whether or not the work is available, having regard to the following:

1. the nature of the worker’s incapacity and previous employment,
2. the worker’s age, education, skills and work experience,
3. the worker’s place of residence,
4. medical information relating to the worker that is reasonably available, including in any medical certificate or report,
5. if any recovery/return to work services are being provided to or for the worker, and
6. the worker’s recovery/return to work plan, if any.

The requirement to provide suitable employment does not apply in the following circumstances:

1. it is not reasonably practicable to provide employment (with the onus of establishing that on the employer); or
2. the worker left the employment of that employer before the commencement of the incapacity for work; or
3. the worker terminated the employment after the commencement of the incapacity for work; or
4. new or other employment options have been agreed between the worker, the employer and the Corporation under s  25(10) ; or
5. the worker has otherwise returned to work with the pre-injury employer or another employer. —  s18(2) .

Pursuant to s 20(1) the employer must provide 28 days notice to the Corporation.

Notice to the Corporation is not required if termination has occurred on grounds of serious and wilful misconduct or the worker is not participating in a recover/return to work plan, nor receiving compensation for the work injury or the worker’s rights to compensation for the injury have been exhausted or the time for making a claim for compensation has expired.

Suitable alternative duties, in relation to a worker, are those duties for which the worker is suited, having regard to the following:

1. nature of the worker’s incapacity and pre-injury employment;
2. worker’s age, education, skills and work experience;
3. worker’s place of residence;
4. any suitable duties for which worker has received rehabilitation training;
5. and any other relevant circumstances.

Suitable alternative duties specifically exclude:

1. duties that are merely of a token nature or do not involve useful work having regard to the employer’s trade or business; or
2. duties that are demeaning in nature having regard to (1) and (2) above and to the worker’s other employment prospects —  s143M(5) ).

Yes

For a period of 12 months commencing on the day on which the worker becomes totally or partially incapacitated by a workplace injury. —  s143L(1). 

Yes

The employer does not have to hold the worker’s position open if: there is medical evidence indicating that it is highly improbable that the worker will be able to perform the employment in respect of which the worker was engaged immediately before becoming incapacitated; or the work for which the worker was employed is no longer required to be performed —  s143L(2). 

s75A(6) Return to Work Act 1986 — Employment is suitable for a worker if it requires the worker to perform work for which the worker is fit as specified in the worker's statement of fitness for work, taking the following matters into account:

• their age
• their experience, training and other existing skills
• their potential for rehabilitation training
• their language skills
• the impairments suffered by the worker; and
• the provision of suitable employment includes the referral of the worker to the alternative employer incentive scheme developed by the Authority if the employer does not have other suitable employment available.

No

But must not dismiss worker, if incapacitated, for 6 months after the injury —  s65C 

Yes

If employer can show worker was dismissed on grounds of serious misconduct —  s65C(3) 

Suitable duties are not defined

The employer does not have an obligation to provide duties if —  s106(4) Workers’ Compensation Act 1951:

• worker leaves voluntarily after the injury
• employer ends worker’s employment after the injury for a reason other than because the worker was not fit for employment because of the injury
• the employer is a non business employer, and
• the employer cannot provide suitable employment.

Suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under  s4 of the SRC Act, means:

a) in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed — employment by the Commonwealth or the licensed corporation, in work for which the employee is suited having regard to:

(i) the employee’s age, experience, training, language and other skills

(ii) the employee’s suitability for rehabilitation or vocational retraining

(iii) whether it is reasonable to expect the employee to change their place of residence, and

(iv) any other relevant matter.

b) in any other case — any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i-iv).

Under  s40(1) — Where an employee is undertaking, or has completed, a rehabilitation program, the relevant employer shall take all reasonable steps to provide the employee with suitable employment or to assist the employee to find such employment.

Suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this —  s3 of the Seafarers Rehabilitation and Compensation Act 1992, means any employment (including self employment) for which the employee is suited having regard to:

1. the employee’s age, experience, training, language and other skills; and
2. the employee’s suitability for rehabilitation or vocational retraining; and
3. if the employment is available in a place that would require the employee to change their place of residence—whether it is reasonable to expect the employee to change their place of residence; and
4. any other relevant matter.
5. Under  s52 — If an employee is undertaking, or has completed, a rehabilitation program, their employer must take all reasonable steps to provide the employee with suitable employment, or to assist the employee to find such employment.

Military Rehabilitation and Compensation Act 2004 (MRCA)  s5 — Work for which the person is suited having regard to the following:

the person’s age, experience, training, language and other skills,

the person’s suitability for rehabilitation or vocational retraining,

if work is available in a place that would require the person to change their place of residence — whether it is reasonable to expect the person to change their place of residence, and

any other relevant matter.

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA)  s4 — Suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:

1. in the case of an employee who was a permanent employee of the Commonwealth on the day on which he or she was injured and who continues to be so employed — employment by the Commonwealth in work for which the employee is suited having regard to:
   1. the employee’s age, experience, training, language and other skills;
   2. the employee’s suitability for rehabilitation or vocational retraining;
   3. where employment is available in a place that would require the employee to change their place or residence — whether it is reasonable to expect the employee to change their place of residence; and
   4. any other relevant matter; and
2. in any other case — any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).