Can my employer fire me for taking medical leave?
If you’re unwell, the last thing you need is to worry about losing your job. In Australia, an employer generally can’t dismiss you because you take a short, properly documented absence due to illness or injury. But medical leave does not protect a job in every situation. Here’s how the main rules work.
Taking sick leave
Full-time employees are entitled to 10 days of paid personal leave each year, and part-time employees receive a proportional amount. This leave can be used when you can’t work because of your own illness or injury. Casual employees generally don’t get paid personal leave, but they may still have protections against dismissal for unlawful reasons.
Tell your employer you need leave as soon as you reasonably can, including how long you expect to be away. Your employer can ask for reasonable evidence, such as a medical certificate or statutory declaration—even for a single day off.
For example, if you develop the flu, notify your manager, provide a certificate if requested and take a few days to recover, your employer generally cannot fire you simply for taking that leave.
What if I’m away for longer?
The Fair Work Act protects employees from dismissal because of a temporary absence due to illness or injury, provided they meet the rules about notifying their employer and supplying evidence when required.
That specific protection may no longer apply if your absence lasts more than three consecutive months, or adds up to more than three months within a 12-month period, and you are not on paid personal leave for the whole absence. That does not mean your employer can automatically fire you after three months.
An employer considering dismissal must still comply with other laws. For example, it may be unlawful to dismiss someone because of a disability. An employer may also need to consider reasonable adjustments—practical changes that help a person do their job, such as modified hours or duties. Whether a job can be kept open will depend on the circumstances, including what the role requires and whether the employee can perform its essential duties.
Can an employer dismiss me for another reason while I’m on leave?
Possibly. Medical leave does not prevent a genuine redundancy, for example. An employer may also raise performance or conduct concerns unrelated to the leave. What matters is the real reason for the dismissal and whether the employer followed the law.
Suppose a business closes an entire department while one employee is recovering from surgery. Their leave does not necessarily prevent a genuine redundancy. But calling the dismissal a “redundancy” when the real reason is the employee’s surgery could be unlawful.
What should I do if my job is at risk?
Keep copies of your leave requests, medical evidence and messages from your employer. If you can, ask what concerns they have and whether a return-to-work plan or adjustments are possible. You usually don’t need to share every detail of your diagnosis, but your employer may need enough information to understand your capacity for work.
If you’re dismissed, get advice quickly from your union, a community legal centre, an employment lawyer or the Fair Work Ombudsman. You may be able to make an unfair dismissal claim (arguing the dismissal was harsh, unjust or unreasonable) or a general protections claim (arguing you were dismissed for an unlawful reason). Applications to the Fair Work Commission generally must be lodged within 21 days of dismissal.
