LawTalk Blog

I have been ill and away from work for 3 months. Can they sack me?

sick leave entitlements

If you're ill and you unable to go to work, personal leave (also commonly referred to as sick leave) can be taken.Personal leave is leave that employees can take when they can't attend work because they are sick or injured. It is a type of leave under the National Employment Standards (NES). But what if you're on sick leave for a long time?

Full time employees under the NES are entitled to 10 days paid personal leave per year intended for sickness, injury and paid carer's leave. Part-time employees receive a pro-rata entitlement to personal leave depending on the number of hours they work.

Under the Fair Work Act you will be protected from dismissal when temporarily absent due to illness or injury unless your absence on unpaid personal/carer's leave extends for more than 3 months, or total absences of 3 months within a 12 month period. The employer, however, would still require a valid reason to dismiss you, even if you have been absent on unpaid leave in excess of 3 months.

Under the Fair Work Act(Cth) "an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury."  However, under Regulation 3.01 of the Fair Work Regulations 2009 "it is not a temporary absence if the employee's absence extends for more than 3 months or the total absences of the employee, within a 12 month period have been more than 3 moths (exclusive of an absence on paid personal/carer's leave or workers compensation)".

Termination of employment under this provision can only come into effect upon exhaustion of all the employee's entitlements such as personal leave, annual leave, and long service leave and if the employee is not on workers compensation absence.

An employer with less than 10 employees is required to keep a position open for an injured worker for 12 months. As per Workers Rehabilitation and Compensation Act 1986(SA) an employer with 10 or more employees is required to keep a position open indefinitely.

The inability to perform the inherent requirements of a position will generally provide a valid reason for termination. Your employment may be validly terminated on the basis of your illness or incapacity when it can be demonstrated that this has an adverse impact on your ability to perform the inherent requirements of your job.

However, if you can demonstrate that you are able to perform duties and responsibilities of your job, even after a period of absence from work, a termination of employment will be considered harsh and unreasonable.

Employers must also be conscious of their Work Health Safety obligations (previously referred to as Occupational Health and Safety) to employees who have been on long-term absence because of illness. Employers must ensure that any direction to the employee to provide the relevant medical information is a reasonable and lawful direction.

If you are dismissed because of illness or incapacity you may make a claim under relevant disability discrimination law.

It is recommended that an employer have solid evidence of the employee's incapacity to work. It is also advisable to consult with the employee, particularly a long serving employee about the situation.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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