Having an employee who takes long amounts of sick leave can be a challenge, especially for small business. Alternative help must be sought, whilst still paying wages to the sick employee.
Small business owners often ask for clarification about sick leave entitlements and related issues such as long periods of sick leave being taken at the one time.
A staff member can take as much sick leave as they have accumulated according to their entitlements and cannot be terminated for being sick.
An employee is entitled to take as much paid sick leave as they have accumulated by law, when they are suffering injury or illness. Even if this means that an employee is away on sick leave for an extended period of time.
An employee cannot be fired for being sick.
When sick leave runs out
If an employee’s legal entitlements to paid sick leave have run out, an employee has the right to take unpaid leave, if they are sick or injured.
You cannot terminate the employee if:-
- they have been on unpaid sick leave for 3 months or less; and
- they have provided you with evidence of their illness or injury.
Staff on sick leave for longer than 3 months
It is not “automatically unlawful” for an employer to dismiss an employee who has used all their available paid leave and either, has:-
- been on unpaid leave for more than 3 months; or
- been absent for 3 months or more (including a combination of paid sick leave and unpaid sick leave) over a 12 month period.
However, an employee still has the standard avenues available to dispute such a termination. An employee can do this by making an unfair dismissal application. They need to be able to show that the reason they were dismissed was harsh, unjust or unreasonable. A general protections claim may also be made if the dismissal was due to an employee’s disability.
Need more information?
Fair Work Australia have some helpful resources and information relating to rights and entitlement surrounding sick leave here.
Need employment documentation?
A comprehensive range of employment agreements and documents for the workplace, can be found here.
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