Long periods of sick leave
An employee can take as much paid sick leave as they have accumulated to get better from an injury or illness.
An employee can’t be fired because they are sick. This includes when an employee is on paid sick leave for a long period of time.
When paid sick leave runs out
When an employee has run out of paid sick leave, they can take unpaid leave if they aren't fit for work because they are sick or injured.
If the employee is on unpaid sick leave, they can’t be fired because of the sick leave if:
- they have been away for 3 months or less and
- they provide evidence of their illness or injury.
When an employee is away for longer than 3 months
If an employee has used all their accumulated sick leave and is on unpaid leave for more than 3 months and they are dismissed by their employer, the termination is not automatically unlawful. The 3 month absence can include a combination of paid sick leave and unpaid leave over a 12 month period.
The normal rules for a termination still apply and the employee may dispute the termination by:
- making an unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable or
- making a general protections claim if the reason for the dismissal is because of the employee’s disability.
Need help resolving general protections issues?
If you've lost your job, contact the Fair Work Commission (the Commission) first if you think you were sacked because of:
- a reason that is harsh, unjust or unreasonable
- another protected right.
You have 21 days from the day you were sacked to lodge an application with the Commission. Check the information at the Commission website to find out if you can apply for:
- unfair dismissal (not available if you lost your job because of a genuine Redundancy)
- a general protections dismissal
- unlawful termination.
For other general protections issues:
- consider whether the action taken against you was unlawful after reading the information on this page
- see our Help resolving workplace issues section for practical advice on:
- talking to your employer about fixing the problem
- getting help from us if you still can’t resolve it.
Take general protections issues seriously. Speak with your employee to address the problem after reading the information on this page.
We have resources to help you:
What to do next
- Complete our Online course on having difficult conversations in the workplace
Want to save this information for later?
If you might need to read this information again, save it for later so you can access it quickly and easily.
You might also be interested in
Page reference No: 1902