Can I claim unfair dismissal if I was dismissed for taking sick leave?

It may be unlawful for your employer to dismiss you because you need to take a period of sick leave.

If your temporary absence is the sole reason for the dismissal, your employer may be in breach of anti-discrimination legislation and/or the Fair Work Act 2009 (Cth). You may be additionally protected if you need to take a temporary leave of absence due to any injury or impairment.

It is inevitable that you will occasionally need to be absent from work due to illness or injury. It is also an important workplace right that you are entitled to be temporarily absent from work due to illness or injury and not have your position terminated.

Fair Work Act 2009 (cth)

This is embodied in section 352 of the Fair Work Act 2009 (Cth) which states that your employer must not dismiss you because you are temporarily absent from work because of illness or injury. Under s 352 of the Fair Work Act 2009 (Cth), your employer may be liable to a maximum penalty of $6600 for dismissing you because you were absent due to illness or injury. Even if you change employers, your former employer may still be subjected to a fine for breaching s 352 for a period of up to 6 years after the breach occurred.

The Fair Work Regulations 2009 (Cth) states that you must provide a medical certificate for the illness or injury, or a statutory declaration regarding the illness or injury, within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances. It is therefore important that you obtain a medical certificate and comply with the reasonable demands of your employer to substantiate your reason for your absence from work.

It is important to note that your absence will not be considered a temporary absence due to illness and therefore not covered by the Act if your absence exceeds 3 months or if your total amount of absences within a 12 month period, has been more than 3 months and you are not on paid personal or carer’s leave for the duration of the absence. Therefore if you anticipate that your absence will last for more than three months, you should discuss this with your employer as additional information may need to be provided to your employer.