Returning to Work After a Psychological Injury Caused by Workplace Stress

NSW workers recovering from psychological injury may have rights 

An employee recovering from a work-related psychological injury does not necessarily have an immediate right to resume every aspect of their former role. Equally, an employer cannot simply decide that a psychological injury makes the employee too difficult or risky to return. The process should be guided by medical capacity, workplace safety and the employer’s legal obligations.

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In the NSW workers compensation system, an employer must generally provide suitable employment when an injured worker requests it, subject to statutory exceptions. So far as reasonably practicable, the work should be the same as, or equivalent to, the employment held when the injury occurred. Suitable work may involve reduced hours, modified duties, a different reporting line, another location, remote work, staged exposure to tasks or temporary separation from an identified workplace stressor.

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The worker’s certificate of capacity, treating practitioner’s recommendations and any functional assessment are central. A return-to-work plan should translate those restrictions into specific duties, hours, supervision arrangements and review dates. A diagnosis need not be disclosed more broadly than necessary; managers usually need practical restrictions and safety controls, not a complete clinical history.

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The employee also has responsibilities. They should cooperate with the injury-management process, provide current capacity information, attend reasonable assessments and genuinely attempt duties that comply with medical restrictions. If a proposed plan is unsafe or inconsistent with the certificate, concerns should be raised promptly and in writing with the employer, insurer or rehabilitation provider.

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Several protections may overlap:

• NSW law makes it an offence to dismiss a worker because of a work-related injury within six months after the worker first became unfit;

• the Fair Work Act protects qualifying temporary absences and prohibits adverse action because of disability or the exercise of workplace rights; and

• disability-discrimination law may require reasonable adjustments unless this would impose unjustifiable hardship.

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These rules do not guarantee indefinite employment, and the end of a six-month period is not a free pass to dismiss. Any later decision must still address the employee’s capacity to perform the inherent requirements of the role, reasonable adjustments, procedural fairness and the true reason for the decision.

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For psychological injuries, a safe return is usually a managed process, not a single “fit/unfit” event. Clear medical parameters, regular reviews and careful separation of performance issues from injury-related limitations give both parties the best chance of a durable return.

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Sources: SIRA — Psychological injuries; SIRA — Providing suitable work; Fair Work Ombudsman — Long periods of sick leave

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Disclaimer: This article provides general information only and is not legal or medical advice. It does not create a solicitor-client relationship.