Can You Fire an Employee for Too Many Sick Days in Australia?

Sick leave is a normal part of running a business with employees. People get sick, accidents happen, and sometimes there are longer-term health issues that affect attendance.

But what happens when sick leave becomes frequent, unpredictable, or prolonged, and it starts impacting your roster, your customers, or your team’s workload?

If you’re wondering can you get fired for too many sick days in Australia, you’re not alone. As a small business owner, you need to balance supporting your staff with keeping the business running. The key is understanding what the law protects, what it doesn’t, and how to manage excessive sick leave in a fair, documented way.

This guide walks you through the legal framework and practical steps you can take before you consider termination.

What Counts As Sick Leave (Personal/Carer’s Leave) And When It Becomes “Excessive”?

In Australia, “sick leave” is usually referred to as personal/carer’s leave. For full-time and part-time employees, it generally accrues over time and can be used when they’re unfit for work due to illness or injury, or to care for an immediate family/household member.

Casual employees generally don’t accrue paid personal leave, but they may still be entitled to unpaid carer’s leave and other protections.

There’s No Single Legal Definition Of “Too Many” Sick Days

“Excessive sick leave” isn’t defined as a specific number of days in the Fair Work Act. In practice, it’s usually identified when attendance patterns create an ongoing operational issue, such as:

• frequent single-day absences that disrupt rosters
• regular absences on certain days (e.g. always Mondays or Fridays)
• extended or repeated absences with no clear return-to-work plan
• ongoing uncertainty that makes it hard to run shifts reliably

That said, even if the leave is disruptive, you still need to handle it carefully. Some absences are legally protected, and mishandling the situation can expose you to unfair dismissal or adverse action claims.

Evidence Requirements: When You Can Ask For Proof

As an employer, you can usually request evidence that would satisfy a reasonable person that the leave is genuinely taken for a permissible reason (for example, a medical certificate or statutory declaration).

In many workplaces, employees can take a day off sick without a medical certificate in some circumstances, depending on the award, agreement, contract, and your policies. If you’re setting expectations or tightening your process, it helps to be consistent and clear about your evidence requirements and when you’ll ask for them.

If you want to understand how this is often handled in practice, it’s worth reviewing sick days without a certificate from an employer compliance perspective (including why policies and consistency matter).

Can You Fire An Employee For Too Many Sick Days In Australia? The Legal Framework Employers Need To Know

There are situations where termination may be legally defensible if an employee’s absences are ongoing and they can’t meet the requirements of the role. However, you generally can’t terminate someone simply because you’re frustrated by sick leave, or because it’s inconvenient.

The legality depends on why the employee is absent, how long they’ve been absent, what you did to manage the issue, and whether the employee is protected under workplace laws (or discrimination laws).

Protected Absences: Temporary Absence Due To Illness Or Injury

Under the Fair Work Act, employees are protected from dismissal because of a temporary absence due to illness or injury, provided certain conditions are met (including giving appropriate evidence).

Importantly, the Fair Work Regulations set specific limits on when an absence will not be considered “temporary” for this protection. In broad terms, an absence may fall outside the “temporary absence” protection if it extends for more than 3 months, or more than 3 months in total over a 12-month period (and, in some cases, where the employee is not on paid personal/carer’s leave for that period). The employee also generally needs to provide required evidence (such as a medical certificate) to access the protection.

This is a major reason why an “attendance-based” termination can be risky if you haven’t checked whether the absence is protected.

Unfair Dismissal Risk

If an employee is eligible to bring an unfair dismissal claim, the Fair Work Commission generally looks at whether there was:

• a valid reason related to capacity or conduct
• a fair process (including giving the employee a chance to respond)
• warnings (where appropriate)
• procedural fairness overall

In other words, even if you have a legitimate business concern, a messy process can still create legal exposure.

Adverse Action And Discrimination Risk

Separately, employees may be protected from adverse action (including termination) because they exercised a workplace right (like taking personal leave), or because of a protected attribute such as disability.

This is where employers often get caught out: the issue isn’t just whether the leave is “too much”, but whether the reason for termination is connected to the employee’s illness, injury, or disability in a way that breaches the law.

When Termination Might Be An Option: Capacity And Inherent Requirements

Sometimes, the issue isn’t misconduct - it’s that the employee can’t perform the inherent requirements of the role, even with reasonable adjustments.

This can come up where there’s prolonged absence with no clear or likely return date, or medical restrictions that mean the role can’t be performed safely or effectively.

In these situations, employers often need a careful, medically-informed process. If you’re dealing with a longer-term illness or injury, termination on medical grounds is an area where getting advice early can save you significant risk later.

Practical Steps To Manage Excessive Sick Leave Before You Consider Termination

Before jumping to termination, it’s usually best to treat excessive sick leave as an attendance and capacity management issue. A structured approach helps you support the employee, protect team morale, and create a clear record if the matter escalates.

1. Check Your Records And Identify The Pattern

Start with the basics:

• How much personal leave has been taken?
• Is the leave paid personal leave, unpaid leave, or a mix?
• Has evidence been provided each time?
• Is there a pattern (certain days, around public holidays, during busy periods)?

Accurate records matter because “excessive” is often a pattern question, not a single event question.

2. Review The Employee’s Contract, Award, And Your Policies

Different awards and agreements can have different expectations around notification and evidence. Also, your own policies may set standards (as long as they don’t undercut minimum legal entitlements).

This is a good time to check your Employment Contract and any workplace policies you’ve issued, to ensure your process is consistent with what you’ve told staff.

3. Have A Supportive, Direct Conversation Early

If absences are frequent, don’t wait until it becomes a crisis. A practical approach is to meet with the employee and cover:

• the impact the absences are having on the business and the team
• whether there’s an underlying issue affecting their capacity
• what support, adjustments, or temporary measures might help
• what you need from them going forward (notice, evidence, communication)

Keep the tone respectful and factual. You’re not accusing them of faking illness - you’re addressing attendance and operational impact.

4. Consider Reasonable Adjustments (Where Relevant)

If the absences relate to an illness, injury, or disability, you may need to consider reasonable adjustments. Examples could include:

• temporary reduced hours or modified duties
• adjusted start/finish times
• a staged return to work

What’s “reasonable” depends on the role and your business size and resources. For small businesses, practicality matters - but you still need to show you considered options.

5. Request Medical Input Where Appropriate

In prolonged or repeated absence situations, you may need clarity about the employee’s capacity and likely timeframe for returning safely.

You can often request a medical certificate and, in appropriate circumstances, ask for further medical information or clearance (handled carefully, and with privacy in mind). If you’re unsure where the line is, medical clearance to return to work is a common compliance issue for employers managing extended sick leave.

How To Run A Fair Process If Excessive Sick Leave Is Becoming A Serious Issue

If the problem continues (or the employee has run out of paid leave and their absences are ongoing), you may need to move from informal discussions into a more formal process.

This isn’t about being harsh. It’s about procedural fairness: making sure the employee understands the concern, has a chance to respond, and knows what could happen if the issue can’t be resolved.

Step 1: Set Clear Expectations In Writing

After your meeting, follow up in writing with:

• a summary of what was discussed
• your expectations going forward (notification, evidence, communication)
• any agreed adjustments or next steps

This paper trail is important if you later need to show that you acted reasonably.

Step 2: Use Warnings Where Appropriate

If the issue is failure to follow procedures (for example, not calling in, not providing evidence when required, or repeated late notifications), warnings may be appropriate.

Keep warnings specific: explain what the problem is, what needs to change, and what the consequences may be if it doesn’t improve. If you want a practical sense of what a compliant warning process looks like, formal warnings at work is a useful reference point.

Be careful not to frame the warning as “you’re sick too often” if the employee is genuinely unwell and providing evidence. Focus on the operational issue and their capacity to meet the role requirements.

Step 3: Consider A Show Cause Process For Serious Ongoing Issues

If the situation has escalated (for example, ongoing absence with unclear return date, or repeated failure to comply with leave procedures), a show cause letter may be an appropriate next step.

A show cause process typically invites the employee to respond to the concerns and explain why disciplinary action (up to and including termination) should not occur. Used correctly, it helps demonstrate fairness and gives the employee a genuine chance to respond.

If you’re heading into this territory, it’s worth understanding how show cause letters are commonly structured and why wording matters.

Step 4: Avoid “Instant Decisions” While You’re Still Investigating

Where there’s uncertainty (for example, suspicion of misuse, conflicting information, or unclear capacity), make sure you give yourself room to assess the facts before you decide on an outcome.

Depending on the scenario, you may consider a short period away from work while you investigate, but “stand down” is only available in limited circumstances (for example, where it’s authorised by the Fair Work Act, an applicable award or enterprise agreement, or the employment contract). If you’re contemplating this step, standing down an employee pending investigation highlights why employers need to move carefully and document the reasons.

Step 5: If Termination Is The Outcome, Get The Exit Mechanics Right

If you reach a point where termination is defensible (for example, ongoing incapacity to perform the inherent requirements, with a fair process followed), you still need to follow correct termination steps, including minimum notice or payment in lieu.

For many employers, paying out notice is the cleanest way to end employment without requiring the employee to work their notice period. Just make sure you do it correctly - including calculating entitlements and documenting the termination. payment in lieu of notice is a common area where small mistakes can cause bigger disputes later.

Common Pitfalls For Small Businesses (And How To Avoid Them)

When managing an employee taking excessive sick leave, the biggest risks usually come from process issues and “what you said” (in writing or verbally) rather than the underlying attendance issue itself.

1. Treating Sick Leave Like Misconduct Without Evidence

If you suspect an employee isn’t genuinely sick, you’ll need to be careful. Accusing an employee of dishonesty without a proper basis can escalate conflict quickly and may undermine your position if the matter ends up in a dispute.

A better approach is often to focus on what you can objectively manage:

• notification rules
• evidence requirements
• capacity and roster reliability

2. Inconsistent Rules Across Staff

If one employee is always asked for medical certificates and another isn’t, you can create perceptions of unfairness (and potential legal issues). Consistency is especially important in small teams where everyone can see how decisions are made.

3. Failing To Consider Discrimination And Adjustments

If the absence is linked to a disability, you may have obligations to consider reasonable adjustments and not discriminate. Even if your business is under pressure, skipping this step can be high-risk.

Practically, this means you should:

• ask the right questions about capacity (not private medical history)
• consider adjustments that could help the employee perform their role
• document what you considered and why it was or wasn’t workable

4. Assuming You Can “Just End It” During Probation

Probation can reduce unfair dismissal risk in some cases, but it doesn’t remove all legal risks (like adverse action or discrimination claims). If you’re terminating during probation and sick leave is part of the background, you still need to be careful about your reasons and documentation.

If you’re managing this scenario, termination during probation is a helpful reminder that probation isn’t a free pass to ignore process.

5. Not Aligning Termination Reason With Evidence

If termination is based on incapacity, your communications should reflect that (capacity/inherent requirements), and you should have information supporting that conclusion (for example, medical input, documented absence history, and attempts to explore adjustments).

If termination is based on failure to follow procedures, your communications should focus on those procedural failures, and you should have written records of warnings and expectations.

Mixing the two (or using emotionally-charged language like “you’re always sick”) is where employers often get into trouble.

Key Takeaways

• You generally can’t terminate someone simply because sick leave is inconvenient - some absences are legally protected, especially where the employee has provided appropriate evidence.
• “Excessive” sick leave isn’t a set number of days; it’s usually assessed based on patterns, operational impact, and whether the employee can perform the inherent requirements of the role.
• Start with good record-keeping, a supportive conversation, and clear written expectations around notice and evidence requirements.
• If the issue continues, a fair and documented process (warnings and/or a show cause process) helps reduce unfair dismissal and adverse action risk.
• Where illness or injury is long-term, capacity management and medical-ground termination rules are complex - get advice early to avoid costly mistakes.

Disclaimer: This article is general information only and does not constitute legal advice. For advice about your specific situation, speak to a lawyer.

If you’d like help managing excessive sick leave or planning a compliant termination process, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.