Can An Worker Be Terminated Whereas on Sick Go away?

As an employer, have you ever ever puzzled when you can terminate an worker whereas they’re on sick depart? Alternatively, as an worker, have you ever ever puzzled whether or not you could be terminated when you are on sick depart?

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

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

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

The quick reply is sure. Based on the Australian Government’s Fair Work Ombudsman(FWO), workers could be terminated whereas they’re on sick depart. 

Nevertheless, sick depart termination is just authorized below 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 depart: 

Jay Shawn has labored for the corporate Money Cash for the final 4 years, however he’s at the moment on sick depart. Throughout his sick depart, his employer Dwayne Karter offers him and his fellow workers with notices of termination as a result of firm closure associated to monetary points. This termination of employment could be thought of authorized as a result of Jay Shawn’s dismissal because of the firm’s monetary points moderately than as a result of him being on sick depart.

Instance of illegal termination whereas an worker is on sick depart:

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

What are the legal guidelines in relation to sick depart 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 depart in Australia. Based on the FWO, workers are entitled to take sick depart if they’re unable to work as a result of harm or sickness or harm. The entitlement to paid sick depart is supplied by National Employment Standards (NES) entitlements.

Full-time and part-time workers are entitled to paid sick depart, however informal workers should not. Nevertheless, all workers are allowed to take unpaid sick depart, together with informal workers. Full-time workers are supplied with 10 days of paid sick depart per 12 months, however part-time workers obtain paid sick depart prorated in line with the hours they’ve labored.

Typically, 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. Nevertheless, while you’re on sick depart, it’s possible you’ll or might not be protected against dismissal based mostly on whether or not you’re an informal or everlasting worker.

Which workers are protected against being terminated whereas they’re on sick depart?

Workers are usually protected against dismissal throughout their sick depart, however there are particular circumstances that should be met. An worker should present the next:

  • The worker should present proof of their sickness or harm
  • The worker should be absent from work as a result 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 protected against termination, the worker should nonetheless be utilizing their paid sick depart

It’s essential to notice that employers can’t terminate workers irrespective of how lengthy they’ve been on depart if they’re utilizing paid sick depart for your entire length of their absence.

Workers may also be protected against being terminated even when they’ve taken all their paid sick depart and been absent for greater than three months. For instance, further safety could be supplied to workers in accordance with state and territory staff’ 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 depart, workers can select to take paid, unpaid, or a mix of paid and unpaid sick depart for his or her absence. The mix of paid or unpaid depart won’t have an effect on their eligibility for defense throughout the required time frame.

Which workers should not protected against being terminated whereas they’re on sick depart?

Workers are doubtless to not be protected if they’re taking sick depart for a comparatively lengthy time frame. An employer could legally dismiss their worker, no matter their worker offering  medical proof, below the next circumstances:

  • The whole size of their absence as a result of 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 depart 

The one exception to this rule is that if workers take sick depart that’s paid for the entire time. In that case, they’d be protected against dismissal no matter how lengthy they have been on depart.

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

Workers can contest their termination by utilizing the next strategies:

You ought to be conscious that there’s a 21-day limitation interval to make a basic 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 shall be supplied with a treatment. Typically, unfair dismissal claims should be made inside 21 days after the dismissal has occurred. 

Nevertheless, the FWC can present an extension for the appliance 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 appliance
  • 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, you could have been employed for no less than six months. Should you’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.

Incessantly Requested Questions(FAQs)

What is taken into account sick depart abuse in Australia?

Abuse of sick depart happens when an worker takes sick depart for causes apart from being unwell.

What to do when you run out of sick depart in Australia?

Your employer could will let you take unpaid sick depart or annual depart in case you have run out of paid sick depart.


Finally, as an employer, you possibly can terminate an worker whereas they’re on sick depart below sure circumstances. Whether or not you’re an employer planning to terminate your worker who’s sick depart or an worker who believes that they’ve been unfairly terminated whereas they’re on sick depart, it is very important strategy the state of affairs 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 an alternative of a rushed one.