Long periods of sick leave
An employee can take as much paid sick leave as they’ve accumulated if they aren't fit for work because they’re sick or injured.
Protection from dismissal while on sick leave
Employees who are away from work temporarily because they're sick or injured may be protected from being dismissed.
To be protected from dismissal during a temporary absence from work:
- the total time away due to illness or injury must be less than 3 consecutive months, or a total of less than 3 months over a 12 month period
- employees can be taking paid, unpaid or a combination of paid and unpaid sick leave during their absence
- employees need to provide evidence of their illness or injury.
When an employee is away for longer than 3 months
An employee is no longer protected from being dismissed (even if they provide evidence) if:
- the total length of their absence due to illness or injury is more than 3 consecutive months, or a total of more than 3 months over a 12 month period
- over that period they’ve only taken unpaid leave, or they’ve taken a combination of paid and unpaid leave.
Employees who take a period of sick leave that is paid the whole time are protected from dismissal regardless of how long they're on leave.
Employers must still follow the appropriate rules for carrying out a dismissal and employees may challenge the termination of their employment by:
- making an unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable
- making a general protections claim if the reason for the dismissal is another protected reason, or
- making a claim under a state or federal anti-discrimination law.
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 starting from the day after you were dismissed 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 Fixing a workplace problem 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:
Boosting Apprenticeship Commencements wage subsidy
If an employee has agreed to start an apprenticeship or traineeship with an employer, it’s important the employee is aware of their general protections at work. These rules still apply for the Boosting Apprenticeship Commencements (BAC) wage subsidy, which provides employers with wage subsidies for new apprentices and trainees.
For example, the following rules continue to apply under the BAC wage subsidy:
- an employer can’t force or misrepresent to an employee that they need to start an apprenticeship or traineeship in order to stay employed
- an employer can’t adversely act against an employee (including terminating employment) if they refuse to start an apprenticeship or traineeship.
You can find more information on termination on our Unfair dismissal page.
For more information about the BAC wage subsidy, including eligibility and payment amounts, go to Boosting Apprenticeship Commencements
on the Department of Education, Skills and Employment website.
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