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 as a result of an injury or illness, your employer will not have the right to terminate your employment. However, if you have a condition and you are well aware, of what you are suffering from, you should notify your employer. If your employer, is unaware of your surrounding circumstances they may consider termination on the basis that you are unable to fulfil the inherent requirements of your role.
An employer should manage all returning employees carefully and sensitively. The reason being that if an employee believes that they have been treated adversely or unfairly upon their return, they can bring a claim against their employer for a breach of the general protections under the Fair Work Act 2009 (Cth).
John Morrissey has been a practising Sydney solicitor for 30 years, and for the past 20 a sole practitioner and the principal at JFMLAW.
His main focus employment law, advising small to medium-sized firms and their employees of their rights and obligations.
For many years he was a lecturer at UTS to students obtaining Masters in Human Resources Management with a focus on performance management and creating a culture of delivery in workplaces. John has acted for a significant number of employers, not only in developing a performance based culture in the workplace but also solving particular problems that arise relating to unfair dismissal, contract disputes, improper use of intellectual property or other property as well as enforcements of restraints of trade.
John is very happy to speak to any employer who has an issue on a free of charge basis by a phone call. Please feel free to ring John at anytime up to 6pm most days.