October 1, 2023


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Can An Worker Be Terminated Whereas on Sick Go away?

7 min read

As an employer, have you ever ever puzzled if you happen to can terminate an worker whereas they’re on sick go away? Alternatively, as an worker, have you ever ever puzzled whether or not you might be terminated if you are on sick go away?

Workers on full-time and part-time contracts are entitled to a sure variety of paid sick days per 12 months. The problem of sick go away, nevertheless, turns into murky, the place a interval of sick go away overlaps with dismissal.

On this article, we are going to clarify whether or not an worker might be terminated whereas they’re on sick go away, which staff are protected and which aren’t from termination whereas on sick go away, in addition to solutions to different ceaselessly requested questions. 

Can an worker be terminated whereas they’re on sick go away?

The quick reply is sure. Based on the Australian Government’s Fair Work Ombudsman(FWO), staff might be terminated whereas they’re on sick go away. 

Nonetheless, sick go away termination is barely authorized beneath the next circumstances:

  • There’s a lawful purpose for the worker’s termination
  • The worker doesn’t have any safety towards termination

Instance of lawful termination whereas an worker is on sick go away: 

Jay Shawn has labored for the corporate Money Cash for the final 4 years, however he’s at present on sick go away. Throughout his sick go away, his employer Dwayne Karter gives him and his fellow staff with notices of termination resulting from firm closure associated to monetary points. This termination of employment can be thought-about authorized resulting from Jay Shawn’s dismissal because of the firm’s monetary points somewhat than resulting from him being on sick go away.

Instance of illegal termination whereas an worker is on sick go away:

Chris Brown is on paid sick go away since he has been sick for 2 weeks, and his employer terminates him whereas he’s on sick go away as a result of he needs to rent a brand new worker to interchange him. This termination can be illegal as a result of Chris Brown is being terminated as a result of he’s on sick go away.

What are the legal guidelines in relation to sick go away in Australia?

In Australia, staff are well-protected by legal guidelines on the State and Federal degree. The FWO outlines the legal guidelines governing paid sick go away in Australia. Based on the FWO, staff are entitled to take sick go away if they’re unable to work resulting from harm or sickness or harm. The entitlement to paid sick go away is offered by National Employment Standards (NES) entitlements.

Full-time and part-time staff are entitled to paid sick go away, however informal staff are usually not. Nonetheless, all staff are allowed to take unpaid sick go away, together with informal staff. Full-time staff are supplied with 10 days of paid sick go away per 12 months, however part-time staff obtain paid sick go away prorated in accordance with the hours they’ve labored.

Typically, staff who’re absent from work briefly as a result of they’re sick or injured could also be supplied with safety from being dismissed. Nonetheless, if you’re on sick go away, chances are you’ll or will not be shielded from dismissal primarily based on whether or not you’re an off-the-cuff or everlasting worker.

Which staff are shielded from being terminated whereas they’re on sick go away?

Workers are typically shielded from dismissal throughout their sick go away, however there are particular situations that have to be met. An worker should present the next:

  • The worker should present proof of their sickness or harm
  • The worker have to be absent from work resulting from their sickness or harm for lower than three consecutive months, or a complete of fewer than three months over the last 12-month interval
  • To be shielded from termination, the worker should nonetheless be utilizing their paid sick go away

It’s vital to notice that employers can’t terminate staff irrespective of how lengthy they’ve been on go away if they’re utilizing paid sick go away for your complete length of their absence.

Workers can be shielded from being terminated even when they’ve taken all their paid sick go away and been absent for greater than three months. For instance, further safety might be offered to staff in accordance with state and territory staff’ compensation and rehabilitation laws. 

Moreover, staff have the power to contest their termination in the event that they imagine their employer hasn’t adopted the suitable procedures for terminating them. 

When making use of for sick go away, staff can select to take paid, unpaid, or a mix of paid and unpaid sick go away for his or her absence. The mixture of paid or unpaid go away won’t have an effect on their eligibility for defense inside the required time frame.

Which staff are usually not shielded from being terminated whereas they’re on sick go away?

Workers are possible to not be protected if they’re taking sick go away for a comparatively lengthy time frame. An employer might legally dismiss their worker, no matter their worker offering  medical proof, beneath the next situations:

  • The overall size of their absence resulting from sickness or harm is greater than three consecutive months or a complete of greater than three months over the newest 12-month interval; and
  • If throughout that interval, the worker has taken all of their paid sick go away 

The one exception to this rule is that if staff take sick go away that’s paid for the entire time. In that case, they’d be shielded from dismissal no matter how lengthy they had been on go away.

What ought to staff do in the event that they assume they’ve been illegally terminated whereas they’re on sick go away?

Workers can contest their termination through the use of the next strategies:

You have to be conscious that there’s a 21-day limitation interval to make a common protections declare. The Fair Work Commission(FWC) helps staff check their eligibility for a general protections dismissal claim

Equally, via the FWC, you may check your eligibility for an unfair dismissal claim. Moreover, you may rent a lawyer that can assist you decide whether or not you may contest your termination.

What necessities must be met for an unfair dismissal declare?

Unfair dismissal claims are made in accordance with section 394 of the Fair Work Act 2009. If an unfair dismissal declare is profitable, the worker who has been unfairly dismissed will probably be supplied with a treatment. Typically, unfair dismissal claims must be made inside 21 days after the dismissal has occurred. 

Nonetheless, the FWC can present an extension for the applying to be made. In these conditions, the next components outlined in part 394(2) of the Honest Work Act are taken under consideration:

  • The deserves of the applying
  • What brought about the delay
  • Whether or not the worker was conscious that that they had been terminated on the time they had been dismissed or whether or not they found that they had been terminated at a later date
  • Whether or not the worker had taken any motion to contest the termination that brought about a delay in making an unfair dismissal software

It’s vital to notice that to make an unfair dismissal declare, you could have been employed for at the very least six months. When you’re an worker of a small enterprise, it’s a must to be employed for a minimal interval of 12 months earlier than you may make an unfair dismissal declare.

Incessantly Requested Questions(FAQs)

What is taken into account sick go away abuse in Australia?

Abuse of sick go away happens when an worker takes sick go away for causes apart from being in poor health.

What to do if you happen to run out of sick go away in Australia?

Your employer might help you take unpaid sick go away or annual go away when you’ve got run out of paid sick go away.


Finally, as an employer, you may terminate an worker whereas they’re on sick go away beneath sure circumstances. Whether or not you’re an employer planning to terminate your worker who’s sick go away or an worker who believes that they’ve been unfairly terminated whereas they’re on sick go away, you will need to strategy the scenario via a authorized channel.
Whether or not you’re an employer or an worker, you need to rent a lawyer that can assist you make an knowledgeable determination as a substitute of a rushed one.

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