New South Wales Consolidated Acts New South Wales Consolidated Acts(cf IR Act, s 99)
(1) An employer of an injured worker who dismisses the worker is guilty of an offence if--(a) the worker is dismissed because the worker is not fit for employment as a result of the injury, and(b) the worker is dismissed during the relevant period after the worker first became unfit for employment.: Maximum penalty--100 penalty units.
(2) For the purposes of subsection (1), the
"relevant period" is--(a) the period of 6 months after the worker first became unfit for employment, except as provided by paragraphs (b), (c) and (d), or(b) if the worker is entitled under a State industrial instrument to accident pay as a result of the injury for a period exceeding that period of 6 months--the period during which the worker is entitled to accident pay, or(c) if the worker was entitled under a State industrial instrument to accident pay as a result of the injury for a period exceeding that period of 6 months but that instrument ceased to have effect as such in relation to the worker because of the commencement of Schedule 8 to the Workplace Relations Act 1996 of the Commonwealth--the period during which the worker would have been entitled to accident pay under the instrument if it had not ceased to have effect, or(d) if the worker (other than a worker referred to in paragraph (c)) is entitled under a Commonwealth industrial instrument (or was entitled under a Commonwealth industrial instrument as in force immediately before the commencement of Schedule 7 to the Workplace Relations Act 1996 of the Commonwealth) to accident pay as a result of the injury for a period exceeding that period of 6 months--the period during which the worker is (or the period during which the worker was) entitled to accident pay, whichever is the greater period.
"Accident pay" is an entitlement of the worker to payment by the employer, while the worker is unfit for employment, that is described as accident pay in the relevant industrial instrument.Note : Both Schedules 7 and 8 to the Workplace Relations Act 1996 of the Commonwealth (which were inserted by the Workplace Relations Amendment (Work Choices) Act 2005 of the Commonwealth) commenced on 27 March 2006.
(3) It is a defence to a prosecution for an offence under this section if the employer satisfies the court that--(a) at the time of dismissal, the worker would not undergo a medical examination reasonably required to determine fitness for employment, or(b) at the time of dismissal, the employer believed on reasonable grounds that the worker was not an injured worker within the meaning of this Part.
(4) The prosecution may establish that an injured worker was dismissed because the worker was not fit for employment as a result of the injury if the prosecution establishes that the injury was a substantial and operative cause of the dismissal.
(5) This section applies even if the worker became unfit for employment before the commencement of this section.