Section 352 of the Fair Work Act 2009 provides that an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury in the workplace of a kind prescribed by the regulations. The Commission and the Courts have made it clear that employees have protections under the law and rights if they are dismissed in these circumstances.

Under Regulation 3.01 of the Fair Work Regulations 2009, an illness or injury is of a prescribed kind if:

(a) a medical certificate or statutory declaration is provided by the employee within 24 hours after the commencement of the absence (or within such longer period as is reasonable in the circumstances), or

(b) the employee complies with the terms of a workplace instrument which requires the employee to notify the employer of the absence and to substantiate the reasons for absence, or

(c) the employee complies with the evidentiary requirements in para 107(3)(a) for taking personal/carer’s leave for a personal illness or injury.

However, the Fair Work Regulations provide that an illness or injury is not of a prescribed kind if the employee is not on paid personal/carer’s leave (however described) for their illness or injury and either:

(a) the absence extends for more than three months, or

(b) the total absences within a 12-month period (based on a single or separate illnesses or injuries) extend for more than three months, and

(c) the employee is not on paid personal/carer’s leave (however described) for their illness or injury for the duration of the absence.

If you have experienced injury in the workplace, MKI Legal can assist. You may have a claim for an unfair dismissal remedy with the Fair Work Commission or an adverse action claim if you are terminated because of it. Please search other parts of this site for more information on employment law.