Off work sick or injured: when your job is protected

The protection

Section 352 of the Fair Work Act 2009 (Cth) says an employer must not dismiss an employee because the employee is temporarily absent from work because of an illness or injury of a kind prescribed by the regulations. It applies to any illness or injury, not only one suffered at work.

It is one of the general protections in Part 3-1 of the Act. If the employee alleges that the absence was a reason for the dismissal, the law presumes it was unless the employer proves otherwise (s 361). The absence does not need to be the only reason: it is enough that it was one of the reasons (s 360).

What counts as a prescribed illness or injury

Regulation 3.01 of the Fair Work Regulations 2009 (Cth) sets out when an absence is covered. Any one of three ways is enough:

(a) the employee gives a medical certificate or a statutory declaration about the illness or injury within 24 hours after the absence starts, or within a longer period that is reasonable in the circumstances; (b) the employee's award or enterprise agreement requires them to notify the employer of an absence and back up the reason, and they do so; or (c) the employee has given the evidence the Act requires for paid personal (sick) leave under s 107(3)(a).

In practice, the safest course is to tell your employer as soon as you can that you are unwell and to send a medical certificate promptly.

The three-month limit

The protection is not unlimited. Under reg 3.01(5), an illness or injury stops being a prescribed kind if the absence lasts more than three months, or the employee's absences in a 12-month period add up to more than three months (from one illness or several), and the employee is not on paid personal/carer's leave for the whole of the absence.

This matters most for people hurt at work. Regulation 3.01(6) says time off while receiving workers compensation is not paid personal/carer's leave. So once a worker on workers compensation has been away for more than three months, s 352 itself no longer protects them.

Other protections still apply

Losing the s 352 protection does not mean an employer may dismiss freely. Dismissing someone because of a physical or mental disability can breach s 351, and dismissing them because they made or could make a workers compensation claim can be adverse action for exercising a workplace right under s 340. Unfair dismissal law also still applies to eligible employees.

Stephens v Australian Postal Corporation [2011] FMCA 448 shows how these claims sit together. Mr Stephens hurt his back at work in December 2009, claimed workers compensation, and was summarily dismissed on 7 January 2010. Australia Post conceded that his December absences were covered by reg 3.01, but Federal Magistrate Smith found it improbable that those absences influenced the decision, so the s 352 claim failed. But Australia Post had not proved that his back injury and his pending compensation claim played no part in the decision, so it was found to have breached ss 340(1) and 351(1), and was ordered to reinstate him.

Employees outside the national system, such as many WA public sector and local government employees, have a similar protection against termination for temporary absence because of illness or injury in s 772(1)(a) of the Fair Work Act, with the same three-month limit in reg 6.04. Its evidence rules are the first two ways listed above (a medical certificate or statutory declaration, or the award or agreement's notice rules).

What this means for you

If you are off work sick or injured, keep your employer informed and give medical evidence promptly, and keep copies. If your absence is getting long, it is worth getting advice about where you stand before the three-month mark.

If you are dismissed while unwell or injured, the reasons matter, and the law puts the burden on the employer to explain them. A general protections dismissal claim, like an unfair dismissal claim, must be lodged with the Fair Work Commission within 21 days of the dismissal. In the WA state system, an unfair dismissal claim goes to the WA Industrial Relations Commission within 28 days.