Can I Be Dismissed While on Sick Leave in Australia?
Navigating workplace rights can be challenging, especially when health issues arise. A common concern among employees is whether they can be dismissed while on sick leave. Under Australian Employment Law, the answer is not always straightforward. While there are protections in place, there are also circumstances where dismissal may still occur.
In Australia, sick leave is part of the National Employment Standards (NES), which provides eligible employees with paid personal/carer’s leave. Full-time employees are entitled to 10 days of paid sick leave per year, while part-time employees receive a pro-rata amount.
Sick leave is designed to protect workers when they are unwell or injured, ensuring they are not financially disadvantaged during recovery. However, this protection does not make employees immune from dismissal in all cases.
Can You Be Dismissed While on Sick Leave?
Under Employment Law in Australia, it is generally unlawful for an employer to dismiss an employee solely because they are temporarily absent due to illness or injury. This is known as a “temporary absence” protection.
However, this protection only applies under certain conditions:
The absence must be supported by medical evidence (e.g. a doctor’s certificate)
The leave must not exceed three consecutive months or three months in total over a 12-month period
If these conditions are met, dismissing an employee could be considered unlawful and may lead to legal consequences for the employer.
When Dismissal May Be Lawful
Despite these protections, there are situations where dismissal during sick leave may still be lawful under Employment Law. These include:
Extended Absence Beyond Protected PeriodIf an employee is absent for longer than three months and cannot perform their job duties, an employer may have grounds for dismissal.
Genuine RedundancyIf the role is no longer required due to business changes, redundancy may apply—even if the employee is on sick leave.
Misconduct or Performance IssuesIf there are valid concerns unrelated to the illness (e.g. misconduct or poor performance), dismissal may still proceed.
Inability to Perform Inherent Job RequirementsIf an employee cannot fulfil the inherent requirements of their role due to ongoing illness, dismissal may be considered lawful.
Employer Obligations During Sick Leave
Employers must follow strict guidelines under Employment Law when dealing with employees on sick leave. These include:
Avoiding discrimination based on illness or disability
Providing procedural fairness before making dismissal decisions
Considering reasonable adjustments where possible
Maintaining communication with the employee
Failing to meet these obligations could result in claims of unfair dismissal or discrimination.
What Is Unfair Dismissal?
Unfair dismissal occurs when an employee is terminated in a harsh, unjust, or unreasonable manner. If you are dismissed while on sick leave, you may have grounds to file a claim if:
You were within the protected sick leave period
You provided valid medical evidence
Your employer failed to follow due process
Employees can lodge a claim with the Fair Work Commission within 21 days of dismissal.
Steps to Take If You’re Dismissed While on Sick Leave
If you believe your dismissal was unlawful, consider the following steps:
Review Your Employment ContractCheck for any clauses related to sick leave and termination.
Gather Medical EvidenceEnsure you have documentation supporting your absence.
Seek Legal AdviceAn employment lawyer can assess your situation and advise on your rights.
File a Claim PromptlyTime limits apply, so act quickly if you intend to challenge the dismissal.
Tips to Protect Yourself
To minimise risk and protect your rights under Employment Law, follow these best practices:
Always provide medical certificates for sick leave
Keep clear records of communication with your employer
Stay informed about your entitlements
Maintain professional conduct even while absent
Being proactive can significantly strengthen your position if issues arise.
While Australian Employment Law offers strong protections for employees on sick leave, these rights are not absolute. Employers still retain the ability to dismiss workers under certain lawful circumstances.
Understanding where you stand is crucial. If you are facing dismissal or are unsure about your rights, seeking professional advice can make all the difference.
Unsure about your rights under Employment Law?
Don’t leave your future to chance. Consult an employment law expert. Contact New South Lawyers today and protect your workplace rights with confidence.
