September 29, 2023


Learn Business From Experience

Can An Worker Be Terminated Whereas on Sick Depart?

7 min read

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

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

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

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

The quick reply is sure. In accordance with the Australian Government’s Fair Work Ombudsman(FWO), workers could be terminated whereas they’re on sick go away. 

Nonetheless, sick go away termination is simply authorized underneath 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 presently on sick go away. Throughout his sick go away, his employer Dwayne Karter supplies him and his fellow workers with notices of termination because of firm closure associated to monetary points. This termination of employment could be thought-about authorized because of Jay Shawn’s dismissal as a result of firm’s monetary points somewhat than because of 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 desires to rent a brand new worker to switch him. This termination could 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, workers are well-protected by legal guidelines on the State and Federal stage. The FWO outlines the legal guidelines governing paid sick go away in Australia. In accordance with the FWO, workers are entitled to take sick go away if they’re unable to work because of harm or sickness or harm. The entitlement to paid sick go away is supplied by National Employment Standards (NES) entitlements.

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

Usually, workers 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, while you’re on sick go away, you could or will not be shielded from dismissal based mostly on whether or not you’re an off-the-cuff or everlasting worker.

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

Staff are usually shielded from dismissal throughout their sick go away, however there are particular circumstances 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 because of their sickness or harm for lower than three consecutive months, or a complete of fewer than three months over the past 12-month interval
  • To be shielded from termination, the worker should nonetheless be utilizing their paid sick go away

It’s essential to notice that employers can’t terminate workers regardless of how lengthy they’ve been on go away if they’re utilizing paid sick go away for all the period of their absence.

Staff 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, extra safety could be supplied to workers in accordance with state and territory employees’ compensation and rehabilitation laws. 

Moreover, workers 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, workers 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 is not going to have an effect on their eligibility for cover inside the required time period.

Which workers will not be shielded from being terminated whereas they’re on sick go away?

Staff are doubtless to not be protected if they’re taking sick go away for a comparatively lengthy time period. An employer could legally dismiss their worker, no matter their worker offering  medical proof, underneath the next circumstances:

  • The entire size of their absence because of sickness or harm is greater than three consecutive months or a complete of greater than three months over the most recent 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 workers take sick go away that’s paid for the entire time. In that case, they might be shielded from dismissal no matter how lengthy they have been on go away.

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

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

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

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

What necessities should 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 likely be supplied with a treatment. Usually, unfair dismissal claims should 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 Truthful Work Act are taken into consideration:

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

It’s essential to notice that to make an unfair dismissal declare, it’s essential to have been employed for not less than six months. For those who’re an worker of a small enterprise, it’s important to be employed for a minimal interval of 12 months earlier than you may make an unfair dismissal declare.

Continuously 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 aside from being sick.

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

Your employer could let 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 possibly can terminate an worker whereas they’re on sick go away underneath 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, it’s best to rent a lawyer that can assist you make an knowledgeable choice as a substitute of a rushed one.

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