Injury or illness

What obligations does my employer have to make the workplace safe?

Your employer has legal obligations to under work health and safety laws to make your workplace safe. They must either:

• eliminate risks to health and safety as far as reasonably practicable, or
• if it is not reasonably practicable to eliminate risks to health and safety, to minimise the risks as much as reasonably practicable.

This includes risks of physical and psychological harm.

If you work remotely, your employer has responsibilities to manage any risks to your health and safety.

SafeWork NSW can investigate workplace health and safety issues. SafeWork NSW can:

• issue your employer with an improvement or prohibition notice
• issue a penalty notice, or
• prosecute the matter through the Court. 

For more information, see Safety starts here and Employer and business obligations on the SafeWork NSW website. 

What can I do if I have a work relat​ed injury or illness and can't go to work?

If you have a work related injury or illness and are unable to go to work, you should contact your employer as soon as possible to let them know.

If you work through a group training organisation or labour hire agency, you can report your injury or illness to your supervisor, the health and safety representative or your agency.

Your industrial agreement, award or contract may set out requirements for taking sick leave or any other form of leave.

You should also see a GP if you have a work related injury or illness. In some circumstances they may provide you with a certificate of capacity.

What if I do not have any sick​ leave?

If you do not have sick leave, you might be able to take some other sort of paid or unpaid leave. 

You should:

• check your industrial agreement, award or contract for information about your leave entitlements
• consider any policies in your workplace
  
• speak to your human resources section if your workplace has one
  
• speak to your employer about the situation and see if you can reach an agreement with them about what to do.

Do I have to provide my em​ployer with a medical certificate?

Your employe​r can ask you to provide them with a medical certificate if you take personal leave, such as sick leave or carer's leave.

Under the National Employment Standards you must provide y​​our employer with proof of why you need leave, such as a:​

• medical certificate, or
• Statutory Declaration.

If you are absent for a longer period of time, or on particular days, suc​h as regularly taking sick leave on a Friday, it may be reasonable for your employer to request that you provide a medical certificate for those absences.

You can also check your award or employment contract for more inform​ation about personal leave and what is an acceptable type of evidence.

For more information about sick leave, contact the Fair Work Ombudsman.​

If you have a dispute or disciplinary issue related to sick leave, you should get le​​gal advice.

Does a medical certificat​e have to state the reason I was sick?

​The medical certificate does not need to state why you are sick. However, it needs to state that you are or will be unfit for work during the period of time you are off wo​​rk because of a personal illness or injury.

​What is a cer​tificate of capacity?

A certificate of capacity is a certificate completed by your nominated treating doctor. It outlines:

• the injury or illness that was caused by work and the date it occurred
  
• your capacity to work or undertake the activities involved in your job
• the treatment you are required to undergo for a safe and lasting recovery. 

The certificate will include details of the treating doctor and allow the doctor to release information to your employer and the insurer to help manage your return to work.

For more information, see Certificate of capacity on the State Insurance Regulatory Authority website. 

​​​Can I apply for workers ​comp​​ensation?

If you have an injury or illness that is related to your work, you might be able to apply for workers compensation. Whether you can make a claim may depend on:

• how you are employed, for example, who you work for or whether you are a contractor
  
• the nature of your illness or injury, and whether it was new or pre-existing
• when and how the injury or illness occurred
• how your injury affects you
  
• whether the injury or illness occurred at work.

For more information, see Eligibility on the State Insurance Regulatory Authority website.

If you want to make a workers compensation claim, you should ensure your employer is notified of the illness or injury as soon as it occurs. You should also keep any medical documents or evidence about what has happened, as you may need this for your claim.

You have six months from the date of your injury or accident to make a claim for workers compensation, or as soon as you become aware of the injury or illness. 

For more information, you can speak to the State Insurance Regulatory Authority or get legal advice. 

Do I need a lawyer to apply fo​r workers compensation?

If you want to apply for workers compensation, you should get legal advice. A lawyer can:

• help you to work out whether you are eligible to apply for workers compensation
• discuss what benefits you might be entitled to 
• advise you about any rights you might have to make a legal claim for a lump sum, for example, where you have a permanent disability. 

Where can I get s​upport?

For information about workers compensation laws:

• speak to SafeWork NSW 
• contact the Independent Review Officer (IRO), if you have a disagreement with your insurer
  
• get legal advice.

If you need counselling:

• speak to your GP about a referral, or
• find out if your employer provides free access to a counselling service.

Can I make a claim on an ins​urance policy?

If you have been ill or have an injury, you might be able to claim on:

• any income protection insurance policy you have - you may have this through your superannuation fund
  
• your superannuation benefits, if you have a disability insurance benefit available - for example, some superannuation funds provide a Total and Permanent Disability (TPD) benefit in some circumstances
  
• any other insurance policy you have.

If you are unsure about your options, you should get legal advice.

What can I do if my empl​oyer dismisses me for being absent from work because of illness or injury?

In some circumstances you have a right under the Fair Work Act 2009 (Cth) to be temporarily absent from work if you have an injury or illness, including when you have:

• provided your employer with a medical certificate for the illness or injury, or Statutory Declaration about the illness or injury and submitted the documentation to your employer within 24 hours after your absence started, or within a reasonable period of time based on your circumstances.
• been absent for less than three months.
• your absences within a 12 month period did not exceed more than three months of sick leave, including separate occasions of absences for any illness or injury.

If you meet these requirements, and your employer dismisses you for being temporarily absent from work because of an illness or injury, you may be able make a general protections dismissal application to the Fair Work Commission.

For more information, see General protections dismissal on the My problem is about section of our website.

Employees who take a period of sick leave that is paid the whole time are protected from dismissal regardless of how long they are on leave.

Even if you were dismissed for being temporarily absent due to illness for more than 3 months after the end of paid sick leave within the last 12 months, depending on the circumstances you may still have a claim for unfair dismissal or a different general protections ground. For example, it could be unreasonable or discriminatory to terminate you.

For more information see How do I choose? on the My problem is about section of our website.

If you have been dismissed from work whilst you were on workers compensation, you should get legal advice.

What is industrial manslaughter?

Industrial manslaughter is an offence in NSW. An individual or business can be held responsible for the death of a person due to gross negligence in the workplace.

An offence of industrial manslaughter in NSW has a maximum penalty of $20 million for a body corporate and 25 years imprisonment for an individual. 

If there is a serious injury or illness, a death or a dangerous incident, you must report it immediately to SafeWork. 

For more information, see Incident notification on the SafeWork website.