We regularly get asked about the laws surrounding sickness and employment termination. Fortunately, Australia’s laws are quite clear on this issue, which is something of a relief. As always, you should always seek legal advice from an employment lawyer if you feel you’ve been dismissed unfairly. You can find a list of the best lawyers at lawyerslist.com.au.
In the rest of this article we’ve covered everything you need to know about illness and your rights as an employee. As always, this is meant as advice only and doesn’t constitute professional legal aid.
Can I Be Fired for Being Sick too Often in Australia?
First, let’s address the main question here. In short, the Fair Work Act 2009 says that an employee can’t be fired if they’re temporarily off sick. However, there are a few things to keep in mind here, and employers aren’t as exposed as it might seem at first.
In short, an employee who is absent on sick leave must provide a medical certificate or statutory declaration covering the claimed illness or injury. In most cases, this has to be provided within 24 hours, or, in special circumstances, within a reasonable time frame.
If an employee doesn’t provide these documents, then they can theoretically be dismissed without breaking the law. However, it’s usually a good idea to seek the advice of an employment lawyer to ensure you’re within your rights before terminating a contract.
When Else Can I Be Fired for Being Sick?
As you can imagine, there comes a point where it’s just not reasonable to be expected to keep an employee on the books if they’re constantly off sick. To keep it simple, you may be fired if you:
- Are off sick for a period of more than three months.
- Accrue more than three months of absence over a 12 month period, regardless of whether or not it’s due to one or multiple conditions.
Once again, though, as an employer, it’s a good idea to speak with a lawyer first to ensure you’re not breaking any rules. Otherwise, you could find yourself facing an unfair dismissal case.
What Should I Do if I’ve Been Unfairly Dismissed?
If you feel that you’ve been dismissed without good reason, you may have a strong case for unfair dismissal. If you have a disability or chronic illness, you may also be able to build a case under discrimination laws.
Before doing this, it’s a good idea to sit down with a lawyer, work out whether or not you actually have a case, and decide what action you want to take. In some cases, the best course of action may be to speak with your former employee and settle things amicably. In others, you may have to go to court.
Regardless of your exact situation, it’s important to ensure you’re familiar with your legal rights. If you feel you’ve been unfairly dismissed because you’ve taken too much sick leave, you may consider legal action. Get in contact with your local employment lawyers to find out more.