Can I be dismissed on sick leave? Usually the answer is no

Can I be dismissed on sick leave?, a simple answer on the face of it is no. (I think we all know that). Set out below is the criteria outlined by the Fair work Act (2009). However what’s going on in Australian workplaces has considerably changed in the last three years with the effects of the pandemic. It has certainly changed since the enactment of the Fair work Act in 2009. There seems to be a trend that the moment there is is a problem in the workplace, some employees hit the sick leave button.

Questions sick leave we are regularly asked are:

1. Can I take sick leave when i work form home?.
2. I am subject to a workplace investigation, can i go on sick leave?.
3. I am suspended, can i go on sick leave.
4. I think I have long COVID, I feel lousy how long can i stay on sick leave?
5. The employer wants me to go for a independent medical examination, do I have to agree?
6. I’m on sick leave for mental health concerns, the employer wants further details do I have to agree?
7. the employers wants to ring my doctor, what do i do?

The list of questions are endless.

Each employees situation is different.

But there are some basics to follow.

A) You cannot stay off on sick leave forever. Somewhere along the line the employer is entitled to dismiss you, put questions to you, and get answers. The employer is entitled to move on. Be aware of this. If you feel the employer has created your sick leave situation, that’s what workers compensations is for. (this is state based legislation). Discuss this with your doctor in the first instance, you need your doctors support in these situations.

B) Taking sick leave to avoid an workplace investigation, a dismissal, position relocation, is in the main putting off the inevitable. There is nothing wrong with some time out, recoup, get advice, work out what you want to do. Sick leave is not a defense against serious misconduct, breach’s of OH&S etc, its in reality a employee right for health concerns.

C) Always provide doctors certificates. This can be problematic, and incur unnecessary expense. However it covers you for any disputes with the employer in the future. The longer your off on sick leave the more the employer starts looking for an out.

D) Keep your employer in the loop. Keep in touch with them. Even when you think they know what’s going on. It can be a matter of courtesy with your employer, you want your job kept open for your return. You have an obligation to main the trust and confidence of your employer. Also you don’t want to find they dismiss you for abandonment of employment, when this is simply not the case.

Try and get better

E) Try and get better, is important for your own wellbeing. Let the employer see that your making an effort. You want something from them, ie your job left open for your return. The employer can see your trying your best to get better and return to the workplace. It doesn’t help when you post online, your trip to FIJI, out at nightclubs, music festivals, riding a horse at the beach (we have had all these). In theory there is nothing (subject to your doctors advice) that says you cannot undertake these activities.

In fact there’s an argument it may improve your ability to return to work sooner. But it can be a bad look, perception counts. Keep it off the social media, but that’s up to you.

Staying off on sick leave

F) I’m not your doctor and never will be. What we have observed is that some employees become very comfortable off on sick leave. Depression takes hold, self respect and self worth diminishes. In turn employees sleep in longer and longer, watch video streaming services and become more socially isolated. Work skills become dated. This is no good. A person needs to work, its about purpose in life. There is evidence about employees retiring and within 12 months die or get an serious illness from which they don’t recover. The purpose has gone, the mind and the body experiences this and has had enough.

But the effects of this can be felt at any age. In fact the younger you are the more its important that you work. Even undertake some education, training while off can be good for your wellbeing.

Protection from dismissal for taking sick leave

Employees who are absent from work because they’re sick or injured may be protected from being dismissed. Employees who can provide evidence of their illness or injury are protected from being dismissed because of their absence if they’re:

A) away for less than 3 consecutive months or less than 3 months in total over the last 12 months, or

B) still using their paid sick leave.

When an employee is away for longer than 3 months

An employee is no longer protected from being dismissed because of their absence (even if they provide evidence) if:

A) their absence is more than 3 consecutive months or more than 3 months in total over the last 12 months, and

B) they’ve used all of their paid sick leave.

Employees who use paid sick leave the whole time can’t be dismissed by their employer because of their absence, regardless of how long they’re on leave.

Other protections from dismissal

Even after an employee has been absent for more than 3 months and used all of their paid sick leave, they may still be protected from dismissal for other reasons. For example, additional protections may apply under state and territory workers compensation and rehabilitation laws. Employers must still follow the appropriate rules for carrying out a dismissal and employees may challenge the termination of their employment by making:

A) an unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable

B) a general protections claim if the reason for the dismissal is another protected reason

C) an unlawful termination claim

D) a claim under a state or federal anti-discrimination law.

https://www.fairwork.gov.au/ (workplace ombudsman).

Sick pay amount

The amount of sick pay you get isn’t usually affected by the cause of your sickness. Employers cannot pick and choose how much they want to pay based on your diagnose. We see this occur with mental illness type issues, where the employer think its just a try on, so they reduce what they pay. How can they do this you ask? They refer back to the original employment contract that may have less contract hours. Pay standard day rates excluding shift penalties, rosters weekend rates. Exclude automatic bonus payments. This is in its self is a form of discrimination.

Taking action

• You can lodge a general protections application (F8C) for adverse action with the Fair work Commission.
• Lodge a complaint with the equal opportunity or anti discrimination authority in your state or the federal human rights Commission (AHRC).
• The workplace ombudsman.
• Work Safe in the state your from.

Absence without leave (AWOL)

Don’t get accused of absenteeism. Absenteeism is generally referred to when you take long lunch breaks or consistently go home early. Don’t end up unfairly dismissed as a guise because of you taking sick leave. As previously stated always keep your employer informed of your absences, like leaving the workplace early for doctors or rehab appointments.

Conclusion to: Can I be dismissed on sick leave?

Thank you for reading this article. We are A Whole New Approach. AWNA are not lawyers, nor do we want to be, however we are Australia’s leading workplace advisors and commentators. We are proud of our staff and the outcomes get get for our clients. All matters relating to the Fair work Commission, workplace investigations, casual workers rights, call us now. Know what your employments rights are

1800 333 666 for free confidential discussion

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