Can I terminate an employee who is absent from work due to lengthy illness or injury?

It depends on the circumstances of the specific situation.

Protected employees

Employees are protected from dismissal where they are absent from work to due to illness or injury if they can provide evidence of their illness or injury and if they are:

• absent from work for less than 3 consecutive months or less than 3 months in total over the last 12 months; or
• still using their paid sick leave.

What if the employee is absent from work for longer than 3 months?

Regardless of whether an employee provides evidence of their illness or injury, the employee will not be protected from dismissal if:

• they have been absent from work for more than 3 consecutive months or more than 3 months in total over the last 12 months; and
• they have used all of their paid sick leave.
  (‘Over 3 Months Criteria’)

Beware, however:

Even if an employee meets the Over 3 Months Criteria:

• the employee may still be subject to other protections under state and territory workers compensation and rehabilitation laws;
• employers must still comply with rules for dismissal otherwise the employee may challenge the termination of their employment on any of the following bases:
  • a general protections claim if another protected reason applies;
  • an unfair dismissal claim if the dismissal reason is harsh, unjust or unreasonable;
  • an anti-discrimination claim;
  • an unlawful termination claim.

Key takeaway

Employers may be able to terminate employees if they meet the Over 3 Months Criteria BUT employers should obtain legal advice that is specific to the employee’s circumstances to minimise the risk of the employee making a claim against the employer regarding the termination as identified above. 

For more guidance call us on 03 9548 5500