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LawAccess NSW > Representing Yourself - LawAssist

Absence because of illness or injury ​

    ​Can your employer dismiss you if you are absent from work because of illness or injury?

    Your employer must not dismiss you because you are absent from work temporarily because of an illness or an injury if:

    • you have provided a medical certificate, or a statutory declaration, and you have followed any requirements in your workplace instrument (for example, a modern award, enterprise agreement or contract of employment) and
    • your absence is for three months or less, or a total of three months or less within a 12 month period (not including any time where you were on paid leave).

    Hint icon If you are getting workers compensation payments, there are other laws that may protect you from being dismissed. If you have been dismissed while you are receiving workers compensation, you should get legal advice.

    What you can do?

    If you were dismissed from your job, you may be able to make a number of different claims against your employer. Before you make any claims or applications, you should get legal advice to help you work out what is the right option for you.

    If you were dismissed because you were temporarily absent because of illness or injury, you may be able to make a general protections application to the Fair Work Commission (the Commission).

     If you want to make a general protections dismissal application to the Commission, you must do so within 21 days of the date you were dismissed.

    The Commission will hold a conference to try and settle the dispute. If this does not end the problem, it is possible to apply to the Federal Circuit Court to ask for an order.

    The Federal Circuit Court can order that:

    • you be reinstated (get your job back)
    • your employer pay a fine (penalty)
    • compensation be paid to you.

    Which section of the Fair Work Act applies?

    Section 352 of the Fair Work Act is the section that protects temporary absence for injury or illness. When filling out your general protections application form for the Commission, you will need to refer to this section of the Act. 

    Case study

    MatelitaCase study icon

    Matelita works for a frozen food company as a Quality Officer. Matelita called her supervisor last Monday and told him that she was sick and couldn't come to work. Matelita saw a doctor and got a medical certificate for the week. On Tuesday she called her supervisor and told him she was still sick and would be off for the rest of the week. Her manager told her if she did not come to work the next day, she shouldn't bother coming in at all. Matelita returned to work the following week. Her supervisor told her that she had not been performing and that her employment would be terminated.

    Matelita has a right to take time off work when she is unwell. She also has a right to take any sick leave entitlements that she may have. Matelita may be able to make a general protections dismissal application.

    Alert Icon  This topic only deals with dismissals. However, it is possible to make a general protections application even if you have not been dismissed. You should get legal advice if you have been dismissed or are having problems at work. You may have other options, such as:

    • unfair dismissal claim if you have been dismissed (for more information, see Unfair dismissal)
    • discrimination claim (if you have been discriminated against at work)
    • bullying claim (if you have not been dismissed but are experiencing workplace bullying).

    For answers to commonly asked questions, see What are general protections? - Frequently Asked Questions

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