Can I be dismissed from work while off sick?

Termination from employment while on leave for being sick is generally unlawful. However, we are aware that this is a common issue facing employees.

General Protections

Section 340 of the Fair Work Act protects various workplace rights, including discrimination based on sex, age, and race, access to leave entitlements and access to flexible working arrangements. Under this section, it is a civil offence if an employer prevents an employee from exercising a workplace right. A full list of civil penalties under the Fair Work Act can be found here.

Leave for illness

Under section 352 of the Act, employees are protected from termination due to a “temporary absence due to illness or injury”. The provision carries with it significant civil penalties which, in the most serious of matters, can exceed a $660,000.00 fine for a corporate employer.

Termination due to an illness or injury falls under the umbrella of general protections claims in the Act. General protections protect an employee from adverse action taken by an employer against an employee for exercising a workplace right.

Importantly to note, for a general protections claim, a person has wider access to damages, including damages for:

• Loss of their work contract (depending on the circumstances);
• General damages for “humiliation, hurt and suffering”; and
• Future economic loss.

Damages for humiliation, hurt and suffering is not available for unfair dismissal applications and most other applications under the Act.

Length of leave

The Fair Work Regulations prescribe the kinds of injuries that are protected in section 352. In general, if a certificate from a medical practitioner is provided to the employer within 24 hours of the commencement of the absence (or whatever time is reasonable in the circumstances), it is the kind of illness protected under the Act.

The illness or injury is no longer prescribed if the employee’s absence exceeds three months, either consecutively, or, adds up to a three-month period over a period of 12 months.

Section 772 of the Fair Work Act defines unlawful termination from employment. Unlawful termination includes termination for temporary absences from Work .

Defending a general protections claim

Once a general protections claim is raised, section 361 of the Act reverses the onus onto the employer to prove that any action taken was not due to a proscribed reason.

Following this, it is a defence to a general protections claim if an employer can prove that they did not terminate an employee’s employment due to an unlawful reason.

Takeaways

General protections are a complex area of law and we recommend that you seek advice prior to lodging a claim. It is important that the case is pleaded correctly for the best possible outcome.

Unfair dismissal may be another option available to an employee terminated while absent due to illness, if they believe it was harsh, unjust or unreasonable for their employer to terminate their employment. Unfair dismissals are far simpler to plead, however, we recommend seeking clear employment advice. At Kells, we have a team of highly experienced employment lawyers who can assist.

Photo 18210953 | Dismissed Work © Daniel Schweinert | Dreamstime.com