Employees on full time and part time contracts are entitled to a certain number of paid sick days per year. The issue of sick leave however, becomes murky where a period of sick leave intersects with dismissal.
Here we will provide some clarification on whether an employer can dismiss an employee whilst they’re on sick leave.
The law in relation to sick leave
In Australia, employees are well-protected by laws at the State and Federal level. According to the 10 minimum National Employment Standards (NES), employees are entitled to both paid and unpaid leave, for example, annual leave and personal carer’s leave.
In general, employees who are away from work temporarily because they’re sick or injured may be protected from being dismissed. However, depending on whether you’re a casual or permanent employee, you may or may not enjoy protection from dismissal whilst on sick leave.
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When will you be protected?
Although the general rule protects employees from being dismissed during their absence, there are conditions that need to be satisfied. The employee will need to show that:
- The temporary absence from work due to illness or injury was less than 3 consecutive months, or a total of less than 3 months over a 12 month period; and
- There is evidence of illness or injury.
When applying for sick leave, employees can choose from paid, unpaid or a combination of paid and unpaid sick leave for their absence. The combination of paid or unpaid leave will not affect their eligibility for protection within the required period of time.
When will you not be protected?
Employees are likely not to be protected if they are taking sick leave for a relatively long period of time. An employer may legally dismiss their employee, regardless of medical evidence if:
- The total length of their absence due to illness or injury is more than 3 consecutive months, or a total of more than 3 months over a 12 month period; and
- Over that period they’ve only taken unpaid leave, or they’ve taken a combination of paid and unpaid leave.
The only exception to this rule is if employees take sick leave that is paid for the whole time. In that case, they would be protected from dismissal regardless of how long they’re on leave for.
What you should do if you think you’ve been unfairly dismissed
If you think your employer has unlawfully dismissed you, there are several options you have:
- Lodge an unfair dismissal application;
- Lodge a general protections claim if you think the reason for the dismissal is illegal (e.g. discrimination); or
- Make a claim under State or Federal anti-discrimination law.
You should also note that there is a 21 day limitation period for lodging an unfair dismissal application or a general protections claim. If you’re uncertain about your eligibility for lodging these applications, the Fair Work Commission has ways to check if you’re eligible for both general protection claims and unfair dismissal applications. If you’re unsure as to whether or not you’ve been dismissed legally, an Employment lawyer can provide clarification.
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