An employer does not have a legal right to dismiss an employee because they have exercised a workplace right to take leave. Our law states that disciplinary procedures need to be fair and reasonable therefore, terminating an employee on leave or who is temporarily absent from work as a result of an injury or illness is prohibited under the Fair Work Act 2009 (Cth).
As an employee who is currently suffering from an injury or illness, you are required to notify your employer within 24 hours of your absence from work or within a reasonable amount of time. When notifying your employer you are required to provide them with a medical certificate or a statutory declaration explaining the circumstances of your absence and what you are suffering from.
Furthermore, as an employee who has been absent from work for more than 3 months of paid leave as a result of an injury or illness, your employer will not have the right to terminate your employment. However, if you are on unpaid leave for a duration of greater than 3 months, or for greater than 3 months in a 12-month period, you employer may have the right to terminate your employment on the basis that you are unable to perform your inherent duties.
To speak to one of our experienced lawyers or paralegals about your workplace rights, please call us on (02) 9199 8597 or email us.
The information contained in this post is current at the date of editing – 1 October 2025.
