Can I be dismissed while on sick leave in Australia?

Understanding Dismissal on Sick Leave in Australia

In Australia, it is generally unlawful to dismiss an employee purely because they are on sick leave. The Fair Work Act 2009 includes "general protections" that prevent employers from taking adverse action against employees for exercising workplace rights, including taking paid personal/carer's leave. Therefore, if your dismissal is directly linked to your illness or absence, it could be considered an unlawful termination.

Legitimate Reasons for Dismissal

However, an employer can lawfully dismiss an employee who is on sick leave if the reason for dismissal is genuinely unrelated to the illness. This could include issues such as serious misconduct, consistent poor performance (documented before the sick leave), redundancy, or the employer having a valid reason to terminate the employment contract that existed before the sick leave began. The key is that the dismissal must be for a legitimate, non-discriminatory reason that is separate from your temporary absence due to illness.

Temporary Absence Protections

Additionally, the Fair Work Act offers specific protections for employees on a temporary absence from work because of illness or injury, provided they provide medical evidence. If the absence is for a "short-term illness or injury" (generally up to three months within a 12-month period), an employer cannot dismiss you solely for that reason. If the absence exceeds this period, different rules may apply, potentially allowing dismissal if other conditions are met.