The right of an employer to terminate the employment of an employee during a period when an employee is on sick leave for injury or illness is a vexed one. On the one hand, there will always be employees who abuse what is by world standards a very sympathetic and compassionate system in which Australian law provides very considerable rights to sick leave by employees. The absence of an employee on sick leave can often cause very considerable difficulties for employers, especially small businesses. It can be unfair on colleagues and when abused, can put the viability of a business at risk and place the jobs of others in jeopardy.
On the other hand, the vast majority of Australian employees are decent, hard working and honest and if anything in my experience are want to work much harder and longer than they might be remunerated for. This is borne out by repeated statistics which place Australian workers at the highest levels of those who contribute to their workplace very much more than a standard week’s work.
The Fair Work Act renders it unlawful to terminate the employment of an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations made under the Act. These include any absence from work with an appropriate medical certificate unless the employee’s absence is for more than 3 months or where the employee has been absent for more than a cumulative period of 3 months within 12 months.
Irrespective of these rather stark provisions, the termination of the employment of an employee can be held to be unfair and remedied with reinstatement and compensation even where the employer complies with these provisions.
A dismissal can be unfair even though it might be lawful.