Can you terminate an Employee who is on Sick Leave?
The Fair Work Act 2009 (Cth) prohibits the termination of an employee for certain reasons, and one of those reasons is where an employee is temporarily absence from work because of illness or injury.
This may seem a little harsh on the part of an employer, particularly where an employee is constantly taking time off work due to apparent 'illnesses or injuries' that the employee claims to be suffering from.
However, for an employee to 'technically' be absent from work because of illness or injury, the employee must provide you with a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
- 24 hours after the commencement of the absence; or
- such longer period as is reasonable in the circumstances.
If the employee fails to do this, then theoretically you may be able to terminate the employee whilst he or she is absent without contravening this part of the law.
One other important point to note is that, if the absent employee is not being paid personal carer's leave during the absence (possibly because they have used up all of that leave), and:
- the employee's absence extends for more than 3 months; or
- the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries),
then again, you may be able to terminate the employee without contravening this part of the law.
Note that even if you are able to terminate an employee who is absent for illness or injury, unfair dismissal ramifications may still arise, and therefore you should always obtain professional advice before taking any steps to terminate an employee.
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