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Constantly off work sick: can we dismiss?

Can you dismiss an employee for prolonged absences on personal leave?
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Constantly off work sick: can we dismiss?

Constantly off work sick: can we dismiss?

28 July 2020

By Paul Munro

Can we dismiss an employee for prolonged absences on personal leave?

This question was recently sent to our Workplace Advice Line.

Q We have an employee who has been absent on personal leave for the past month and is not expected to return to work for at least another month. The employee has provided medical certificates however his accrued leave will be exhausted within a couple of weeks.

He has been employed for about two years and has a history of absences because of illness. The employee’s immediate manager wants to terminate his employment, mainly because of pressure from work colleagues who have had a substantial increase in workload during these absences. The employee’s illness is not work-related.

Can we dismiss the employee for prolonged absences on personal leave?

A An employer should not terminate an employee on the grounds the employee is absent on personal/carer’s leave as there are statutory protections under the Fair Work Act which prohibit dismissal in this circumstance.

These include the general protections provisions under the Fair Work Act and the relevant Commonwealth, state or territory discrimination law. Such protections prevent an employer from dismissing an employee if the reason for the dismissal is because of the employee’s absence due to illness or injury.

Where the reason for dismissal is based on other grounds, such as poor performance, misconduct or redundancy, such protections usually do not apply.

Fair Work Act & Fair Work Regulation

Under the Fair Work Act (s352), an employer must not dismiss an employee because he/she is temporarily absent from work for a prescribed kind of illness or injury.

Under Reg. 3.01 of the Fair Work Regulations 2009 it is not a ‘temporary absence’ if an employee’s absence extends for more than three months, or the total absences of the employee, within a 12-month period, have been more than three months, and the employee is not on paid personal/carer’s leave for the duration of the absence.

What is a ‘temporary absence’?

A “temporary absence” is defined to mean where an employee has been absent for more than three continuous months or three months in a 12 month period. There is surprisingly little case law on how the three month period is calculated. According to the Fair Work Commission’s General Protections Benchbook, it appears that if an employee’s absence from work because of illness or injury lasts for more than three months, or if their total absences for illness or injury in a 12 month period amount to more than three months, the protection will not apply to them if any part of the temporary absence is not on paid sick leave.

What is ‘prescribed kind of illness or injury’?

A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
  • 24 hours after the commencement of the absence; or
  • such longer period as is reasonable in the circumstances.

The Fair Work Act (s.12) defines a 'medical certificate' as a certificate signed by a medical practitioner. 'Medical practitioner' means a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

A prescribed kind of illness or injury exists if the employee:
  • is required by the terms of a workplace agreement to notify the employer of an absence from work; and to substantiate the reason for the absence; and
  • complies with those terms.

If the employee fails to comply with the requirements under the Regulation with respect to notification of the absence to the employer and providing a medical certificate or statutory declaration, then the employee is not protected under this part of the Fair Work Act and the Regulation.

Once temporary absence has elapsed

After the three month period has elapsed, the employer could terminate the employee’s employment, provided there was a valid reason to do so. Examples of a valid reason in this circumstance would include the employee’s inability to perform the inherent requirements of the job, a genuine redundancy occurred, or where a reasonable redeployment is not available.

For example, an employer could terminate an employee’s employment if the reason for dismissal was due to a genuine redundancy, and provided the employee was selected for redundancy based on objective selection criteria. This would be despite the employee’s temporary absence from work due to illness or injury.

Disability discrimination

The Fair Work Act (s.351) defines the meaning of “discrimination” and includes the term “disability”. Disability-based adverse action claims made by employees are unlikely to be successful unless the employee is able to demonstrate that adverse action was taken because of the disability itself. It appears that an employer will not breach the prohibition on taking adverse action based on an employee’s disability if the action is taken due to the consequences of the disability, such as absence from work, for example.

Discrimination law

Under relevant Commonwealth, state or territory discrimination law, there are exceptions where it is not unlawful for an employer to discriminate against a person. The main exceptions include:
  • where the person’s disability prevents them from performing the inherent requirements of the job
  • where a person with a disability requires special services or facilities to do their work and the provision of those special services or facilities would cause unjustifiable hardship to the employer
  • where there is genuine occupational requirement for a job that a person be of a certain sex or race
  • where discriminatory acts are done in direct compliance with legislation, and
  • where otherwise discriminatory acts are reasonably necessary to promote health and safety.

Giving notice on personal/carer’s leave

Industrial tribunals have usually determined that an employer is entitled to give notice to an employee absent on paid personal leave because the period of such leave is necessarily uncertain. However, this may differ where the employee is absent on a quantified period of personal leave.

The bottom line: Generally, an employer cannot terminate an employee who is absent from work due to personal illness or injury if the reason for the dismissal is based on the employee’s absence from work.

Workplace Advice Line

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