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Can employees be dismissed for a temporary absence due to illness or injury?

13/04/2022

Employees are entitled to take paid personal leave when they are not fit for work due to personal illness or injury or if they need to provide care to an ill or injured member of their immediate family or household. Often, an employee may only require a couple of days off before returning to work, but sometimes an illness or injury means an employee cannot work for a longer period. In those circumstances, protections are in place to ensure employees are not dismissed from their job while recovering.

The Fair Work Act states that employers must not dismiss an employee because the employee is temporarily absent from work due to illness or injury of a kind prescribed by regulations. For example, when an employee is away from work for two days on paid sick leave.

There are two exceptions to this protection for employees. Firstly, it only relates to situations where an employer dismisses an employee because of the absence and secondly, the employee will not be protected if:

  • the absence extends for longer than three months, or
  • the total absences within 12 months add up to more than three months, and
  • the employee is not on paid personal/ carer’s leave for the duration of the absence.

What are the prescribed regulations?

The prescribed regulations outline requirements for employees to notify their employer and substantiate their absence by submitting a medical certificate or statutory declaration within 24 hours of the absence starting, or a longer period if it is reasonable in the circumstances. If a workplace instrument or contract is in place, employees must also comply with any terms regarding notice and substantiation.

The regulations expressly state that a period of paid personal/ carer’s leave does not include when an employee is absent from work while receiving workers’ compensation.

The Courts have not yet addressed how a temporary absence should be calculated in order for the exceptions to be applied under the current Act and Regulations. However, previous decisions have indicated that employees will no longer be protected against dismissal if any part of their absence because of illness or injury lasting for more than three months (or of total absences within a 12 month period that add up to more than three months) is not on paid sick leave.

In the case of Nikolich v Goldman Sachs J B Were Services Pty Ltd, the applicant was dismissed from his employment while on leave because of workplace bullying. While Mr Nikolich was successful in some aspects of his claim and complied with the prescribed regulations by providing certificates to cover most of his periods of absence from work, it is important to note the Court found the periods of annual leave and leave without pay should be included in the calculation of the period of absence for the purposes of the regulations. Factoring in both paid and unpaid leave, it was found that Mr Nikolich’s periods of absence exceeded three months on both the continuous and the 12 month period basis.