The ongoing global pandemic has heightened health concerns for contracting illnesses. This may lead employees to wonder what long term sick leave entitlements are available to them. Though the April-introduced pandemic leave aided workplaces with COVID-19 affected employees, this article considers what long term sick leave entitlements employees may have, whether due to illness or injury.
1. Sick Leave
As part of Australia’s National Employment Standards (‘NES’), full-time employees are entitled to 10 days’ personal or carer’s (“sick”) leave per year. Part-time employees have sick leave calculated on a pro rata basis. Casual employees have no sick leave entitlement.
Refer to Section 96 of the Fair Work Act 2009 (Cth).
When employees require sick leave beyond their paid sick leave allowance, and are unable to use other paid leave entitlements, they are entitled to apply for unpaid long term sick leave.
2. Protection from Dismissal
Employers may feel that an employee is taking excessive sick leave, creating undue uncertainty and inefficiency for the workplace. However, can they legally dismiss the employee?
It depends. Legislation protects employees from dismissal IF:
The employee has had a ‘temporary absence or illness’, i.e. up to 3 months (Section 352 of the Fair Work Act).
Note: if the employee has workers’ compensation, this protected time period may extend to as long as 6 or 12 months.
AND at least one of the following substantiation requirements are true:
The employee:
- Gave the employer the relevant medical certificate or statutory declaration for the injury or illness suffered
- Has abided by the employer’s workplace instrument regarding leave
- Provided sufficient evidence from which a reasonable person would believe the employee was not fit for work
Exceptions to Protection from Dismissal
It may be possible for an employer to dismiss an employee on long term sick leave. Circumstances include when:
- The duration of sick leave has exceeded 3 months, regardless of whether it comprises one period of absence or a summation of absences over a 12 month period AND
- During their sick leave of absence, the employee was not on paid personal or carer’s leave
3. Challenging Termination
If an aforementioned exception requirement has been satisfied and an employer has dismissed an employee on long term sick leave, what may an employee be entitled to now?
- If the employer has contravened Fair Work General Protections, an employee can make an adverse action claim. For example, they could claim that the employer dismissed them on a discriminatory basis of their physical or mental disability.
- Employees could alternatively claim an unfair dismissal if they have grounds that the employer was harsh, unjust or unreasonable. For more information about these two types of dismissal claims, read this article.
In order to prevent this, prior to termination of a long term sick leave employee, employers should ensure that:
- the employee was unable to perform inherent requirements of the job
- the employer attempted to provide reasonable adjustments for the employee prior to termination (e.g. provision of a new role which accommodates their reduced capabilities due to their injury or illness)
For employees, it can be confusing to understand what entitlements they may have with regard to long term sick leave. Remember there are three key ones:
- Unpaid sick leave, when the employee’s paid sick leave entitlement has expired
- Protection from dismissal, if the employee was on sick leave for less than 3 months and provided sufficient medical evidence
- Ability to challenge termination, for unfair dismissal or contravention of Fair Work General Protections
For more information, browse the government’s factsheet.
