Temporary absence – illness or injury

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

Comparison – unlawful termination

The protection in s.352 is identical to the protection in s.772(1)(a) – meaning that if a person is not eligible to make an application for temporary absence under the general protections then the following information can also be appropriate for an unlawful termination claim.

An employer must not dismiss an employee because the employee was temporarily absent from work due to an illness or injury.

Example

An employer must not dismiss an employee because they were away from work for 2 days on sick leave.

There are 2 exceptions.

Firstly, this protection only relates to an employer dismissing an employee.

Secondly, an employee will not be protected if:

• the employee’s absence extends for more than 3 months

OR

• the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries)

AND

• the employee is not on paid personal/carer’s leave for the duration of the absence.[1]

Regulation 3.01 Temporary absence – illness or injury

1. For section 352 of the Act, this regulation prescribes kinds of illness or injury.

Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

2. A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
   1. 24 hours after the commencement of the absence; or
   2. such longer period as is reasonable in the circumstances.

Note: The Act defines medical certificate in section 12.

3. A prescribed kind of illness or injury exists if the employee:
   1. is required by the terms of a workplace instrument:
      1. to notify the employer of an absence from work; and
      2. to substantiate the reason for the absence; and
   2. complies with those terms.
4. A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3) (a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.

Note: Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.

5. An illness or injury is not a prescribed kind of illness or injury if:
   1. either:
      1. the employee’s absence extends for more than 3 months; or
      2. the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
   2. the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.
   3. In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.

When does the protection apply?

The protection will only apply if the employee satisfies at least one of the substantiation requirements set out in the regulations:

1. The employee provides a medical certificate or statutory declaration about the illness or injury within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances.

OR

2. If the employee is required by the terms of a workplace instrument to notify the employer of an absence from work and to substantiate the reason for the absence, the employee complies with those terms.

OR

3. If required by the employer, the employee gives the employer evidence that would satisfy a reasonable person that the leave is taken because the employee is not fit for work because of a personal illness or personal injury affecting the employee

The Courts have not yet addressed how a temporary absence should be calculated in order for the exception to be applied under the current Act and Regulations. However, decisions issued under predecessor Acts and Regulations could provide guidance on how this should be done.[2]

The Courts have previously decided that where a continuous period of leave is made up of various types of leave, for example, annual leave, paid sick leave and unpaid sick leave, the period is treated as a single absence from work.[3]

The regulations expressly state that a period of paid personal/carer’s leave does not include a period when the employee is absent from work while receiving workers’ compensation.

Regulation 3.01 has been found to contain all of the situations where illnesses or injuries will support a claim under s.352.[4] If a particular absence does not fall within the scope of the regulation, the protection will not apply, even if in ordinary language it would be regarded as a temporary absence.[5]

For an employer to act in breach of s.352, there must be an awareness that the absence was because of an illness or injury and this absence must have been the reason for the termination. This means that the employer must prove that they either did not know the reason for the absence or that they did not terminate the employment because of the absence.[6]

The Courts have confirmed that s.352 does not preclude the dismissal of an employee while the employee is temporarily absent from work because of an illness or injury. If the employee may be dismissed validly it is not to the point that the decision to dismiss happens to be made while the employee is on leave.[7]

Prescribed kind of illness or injury exists

Devonshire v Magellan Powertronics

Devonshire v Magellan Powertronics [2013] FMCA 207 (11 April 2013), [(2013) 231 IR 198].

The employee provided a medical certificate four weeks after the commencement of the absence, and after she had been dismissed while absent.

Consideration of a claim of contravention of s.352 was not beyond jurisdiction by reason of the late provision of the certificate after dismissal.

Stevenson v Murdoch Community Services Inc

Stevenson v Murdoch Community Services Inc [2010] FCA 648 (23 June 2010), [(2010) 202 IR 266].

The employer insisted that the applicant respond to allegations of misconduct while she was on sick leave despite medical and other evidence as to her inability to respond.

The Court found that the employer took advantage of and used the applicant’s temporary absence from work due to illness in terminating her employment. The Court was satisfied that the applicant’s employment was terminated at least for a reason that included a proscribed reason, namely her temporary absence from work because of illness.

Penalty ordered
The respondent was ordered to pay the applicant $7,500 as a pecuniary penalty.

Compensation ordered
The respondent was ordered to pay the applicant 6 months remuneration.

Prescribed kind of illness or injury does NOT exist

Corke-Cox v Crocker Builders Pty Ltd

Corke-Cox v Crocker Builders Pty Ltd [2012] FMCA 677 (3 September 2012).

The Court was satisfied that the applicant had an illness or injury and that he attended various medical practitioners and obtained medical certificates which would have addressed the statutory requirement provided for in the regulations. However he did not satisfy the requirement to provide the medical certificate to his employer within 24 hours of commencement of the absence or at any other time. Verbal advice does not constitute the provision of a medical certificate as required by the Regulations.

Anderson v Crown Melbourne Ltd

Anderson v Crown Melbourne Ltd [2008] FMCA 152 (3 March 2008), [(2008) 216 FLR 164].

The applicant was dismissed after calling in sick. He produced a medical certificate but had previously expressed that he intended to attend a football game in Perth on the day in question.

The Court did not accept the validity of the medical certificate and found that the applicant was not ill on the day in question. Therefore the termination was not for ill health but for the perception that the employer had of misconduct by the applicant.

Nikolich v Goldman Sachs J B Were Services Pty Ltd

Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 (23 June 2006).

The applicant provided certificates covering most of his periods of absence from work. However it was found that his periods of absence exceeded three months on both the continuous basis and the 12 month period basis.

The Court found that parts of the period of leave of absence taken as annual leave and leave without pay should be included in the calculation of the period of absence for the purposes of the regulations.