The test for rebutting the presumption in s 244(2) of the Workers Compensation Act 1987 (NSW) that an injured worker was dismissed because of unfitness for employment is a question of fact to be decided by reference to all the circumstances, including the employer's actual reasons for dismissal; a purely objective test that disregards the employer's subjective reasons is erroneous. However, where the injury and resulting impairment are the matters that actuated the employer's decision — even where the employer characterises its concern as occupational health and safety risk — the presumption will not be rebutted. Occupational health and safety concerns remain relevant at the separate s 243(2) fitness inquiry.
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