The FWC has settled a key question about injured workers and unpaid leave
Unpaid leave is not a sacking, a Fair Work Commissioner has ruled, but one sentence in an employer's letter came uncomfortably close to suggesting otherwise.
The case centred on Peter Gerber, an employee of Bunbury Drilling Company in Western Australia, who filed a general protections claim alleging he had been constructively dismissed after his workers compensation payments were stopped and he was placed on leave without pay.
Gerber had suffered a workplace injury on 18 February 2025. His workers compensation claim was accepted by GIO, the company's insurer, and he began a return-to-work program on 7 April 2025, working six hours a day, three days a week. During that program, he suffered a second injury.
An Independent Medical Examiner (IME) assessed that the original injury had resolved and found no causal link between it and the second injury. GIO accepted that finding, declined liability for the second injury, and ceased payments to Gerber effective 6 August 2025.
On that same date, the company wrote to Gerber confirming the end of his workers compensation payments. Given medical evidence from his own general practitioner indicating he could not perform all duties, the company also sought a second IME before allowing him to return, even in a modified capacity. Gerber was told he could access his remaining paid leave entitlements. Those ran out by 2 September 2025, after which he was placed on...
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