Can You Get Fired For Calling In Sick In Australia?

If you manage a team, you’ve probably faced the tricky question: can you terminate an employee who keeps calling in sick?

It’s a fair concern. Unplanned absences hurt productivity and morale. But moving too quickly can expose your business to unfair dismissal, discrimination or general protections claims.

The good news is there’s a lawful and practical way to manage sick leave issues. In this guide, we unpack when dismissal may be lawful, when it’s not, and the steps to manage absenteeism fairly and compliantly in Australia.

Quick Answer: When Can You Dismiss An Employee Over Sick Leave?

Generally, you cannot fire someone simply for taking genuine sick leave. Employees are entitled to paid personal/carer’s leave under the National Employment Standards (NES), and protections apply to “temporary absence” due to illness or injury.

However, dismissal can be lawful in limited circumstances, including where:

• Absences are not supported by reasonable evidence, or there is a pattern of misuse despite warnings and a fair process.
• The employee can no longer perform the inherent requirements of their role (even with reasonable adjustments) after a fair, evidence-based process and consultation.
• There’s serious misconduct connected to the absences (for example, dishonesty about illness) and you follow a procedurally fair investigation.

Capacity, evidence, and process are key. If you’re considering ending employment for medical reasons, review your obligations around termination on medical grounds before taking steps.

What Counts As “Genuine” Sick Leave In Australia?

Under the NES, full-time employees accrue 10 days of paid personal/carer’s leave each year (pro rata for part-time). Casuals don’t accrue paid sick leave, but may be entitled to unpaid carer’s leave. Modern awards or enterprise agreements may provide additional benefits.

Employees must give notice “as soon as practicable” and provide evidence if you reasonably require it. Reasonable evidence is commonly a medical certificate or statutory declaration that would satisfy a reasonable person that the employee was unfit for work.

As an employer, you can set clear expectations about notice and evidence in your Workplace Policy and contracts. You are also entitled to ask for evidence, and for recurring or extended absences you can request a medical certificate that addresses fitness for work. For more detail on what you can ask for, see when employers can ask for medical certificates.

Where absence is due to illness or injury and appropriately supported, taking sick leave is lawful and protected. Adverse action (like dismissal or demotion) taken because an employee exercises this workplace right can amount to a general protections contravention. That’s why your records, reasons and process matter.

Can You Terminate Someone While They’re On Sick Leave?

Possibly-but only in specific situations and after a careful process.

Australian law protects employees from being dismissed because they are temporarily absent due to illness or injury. Whether an absence is “temporary” can depend on length and evidence. Separate to this, unfair dismissal laws require a valid reason related to capacity or conduct and a procedurally fair process. See the factors the Fair Work Commission assesses under section 387 of the Fair Work Act.

Termination while someone is on sick leave might be justified if, for example:

• Independent medical evidence shows the employee cannot perform the inherent requirements of the position now or in the foreseeable future.
• You have consulted, considered reasonable adjustments and redeployment, and no safe, suitable options exist.
• There is a well-documented history of non-genuine absences despite warnings and opportunities to respond.

On the other hand, dismissing someone because they requested personal leave, provided a valid certificate, or are recovering for a short period is high-risk and likely unlawful.

It’s also important to handle overlapping issues correctly. For example, if an employee is serving notice and becomes ill, there are specific rules about sick leave during a notice period that affect timing and pay.

Before any decision, consider whether a medical clearance is needed to assess fitness, what adjustments might allow a safe return, and whether capacity is likely to improve. Here’s a deeper look at when employers can request medical clearance to return to work.

Managing Frequent Or Unexplained Absences (Without Breaching the Law)

Most absenteeism issues can be resolved without dismissal. A practical, fair framework looks like this:

1) Set Clear Rules And Expectations

Outline notice requirements, how to report absences, evidence thresholds (e.g. when a certificate is required), and what happens for repeat or patterned absences. These should appear in your Employment Contract and supporting policies.

2) Keep Good Records

Track dates, reasons, evidence provided, conversations and any performance impacts. Objective records support fair decisions and help demonstrate that any action is about capacity, conduct or operational impact-not about the right to take leave itself.

3) Address Patterns Early

Arrange a supportive attendance meeting to understand the reason behind absences. Ask open questions and focus on solutions (workload, rostering, adjustments, EAP referral, etc.).

4) Request Evidence (Reasonably)

If absences are frequent or fall on predictable days, it’s reasonable to ask for medical certificates each time for a period. You can escalate for a fitness-for-work assessment where there’s a legitimate need to assess capacity and safety. See your rights to request medical certificates.

5) Consider Health, Safety And Adjustments

Assess if reasonable adjustments could help (temporary modified duties, reduced hours, adjusted roster). Document your considerations. If stress or mental health is involved, approach sensitively-this guide to managing stress leave covers practical steps.

6) Use Warnings And Support Plans

If concerns persist, provide a clear written warning explaining the issues, expected improvement, timeframe and support (e.g., medical assessment, adjusted duties). Follow with a review meeting.

7) Only Escalate To Termination After A Fair, Evidence-Based Process

Terminating for incapacity requires solid medical evidence that the employee can’t perform the inherent requirements of the role and that adjustments or redeployment aren’t workable. If termination is the outcome, ensure you handle notice (or payment in lieu) and final pay correctly.

If leave is exhausted, there are options short of dismissal (e.g., unpaid leave by agreement). This overview on managing sick leave when entitlements run out explains your obligations and risks.

What To Put In Your Contracts And Policies

Clarity up front saves headaches later. Consider including the following in your employment documentation:

• Notice And Evidence Rules: How and when to report an absence, who to notify, and acceptable evidence (medical certificate or statutory declaration).
• Fitness-For-Work: A clause allowing you to request a medical certificate or assessment where reasonably required for safety or capacity.
• Return-To-Work Process: Steps for medical clearance, adjusted duties and trial periods.
• Attendance And Performance: How frequent absences will be addressed (meetings, support plans, warnings) and the link to performance expectations.
• Privacy And Confidentiality: How medical information is collected, used and stored, consistent with privacy obligations.

Your Employment Contract should set high-level rights and obligations, supported by a clear Workplace Policy that explains day-to-day procedures and expectations. If you need formal letters and checklists for performance or exits, Sprintlaw’s Employee Termination Documents Suite and this guide to show cause letters can help you run a fair process.

Process Checklist: How To Handle A Sick Leave Issue Fairly

Use this step-by-step process when frequent or extended sick leave is affecting your business.

Step 1: Identify The Issue

• Is the issue frequency, lack of evidence, capacity to perform duties, or a mix?
• Is there a safety concern? Do you need a fitness-for-work assessment?

Step 2: Review Your Documents

• Check the employee’s contract, applicable award/EA, and internal policy.
• Confirm leave balances and any patterns in the attendance records.

Step 3: Seek Evidence (Reasonably)

• Request medical certificates and, where appropriate, a medical clearance addressing capacity and any recommended restrictions.
• Consider independent medical advice if needed and proportionate.

Step 4: Consult And Consider Adjustments

• Meet with the employee to discuss concerns, share medical information (appropriately) and explore temporary adjustments or redeployment.
• Record what you considered and why particular options were or weren’t feasible.

Step 5: Implement A Support/Improvement Plan

• Set clear expectations (attendance, communication, medical updates), a timeframe and check-ins.
• Provide a written warning if appropriate, with an opportunity for the employee to respond.

Step 6: Reassess Capacity

• If the employee can perform the inherent requirements (with adjustments), support their return and monitor.
• If medical evidence shows they cannot perform the role, document the inherent requirements and why adjustments aren’t sufficient.

Step 7: Decide And Communicate

• If termination is necessary, ensure the reason is capacity (not the exercise of the right to take leave), and that a procedurally fair process was followed.
• Handle notice, payment in lieu if applicable, and accrued entitlements. Double-check your obligations for calculating final pay.

If the employee is still on sick leave during this period, be extra careful about causation-your documents should make it clear the reason for action is capacity or conduct following a fair process, not that the employee took entitled leave.

Common Pitfalls Employers Should Avoid

• Acting Because Of The Leave, Not The Evidence: Termination “because” an employee took sick leave (with evidence) risks general protections claims. Anchor your decision in capacity or conduct, backed by documentation.
• Skipping Procedural Fairness: Not giving notice of concerns, evidence, a chance to respond and support opportunities is a fast track to unfair dismissal.
• Inadequate Medical Information: Relying on assumptions instead of medical facts about what the employee can and cannot do.
• Ignoring Reasonable Adjustments: Failing to consider changes to hours, duties or equipment can raise discrimination risks.
• Inconsistent Application Of Policy: Applying attendance rules to some employees and not others can undermine your position.

When in doubt, slow down, document, consult and seek advice. A structured, evidence-based approach protects your business while treating people fairly.

FAQs For Employers

Can we require a medical certificate for every sick day?

You can require reasonable evidence that would satisfy a reasonable person the employee was unfit for work. For frequent absences or patterns, it’s often reasonable to require a certificate for each day for a defined period. Spell this out in policy.

Can we ask what the medical condition is?

Only ask for information reasonably necessary to assess capacity, safety and adjustments. Focus on restrictions and capabilities rather than diagnoses, and handle any health information in line with your privacy obligations.

What if sick leave is exhausted?

You can discuss options like unpaid leave, adjustments or redeployment. If the employee still can’t perform the inherent requirements and there are no reasonable adjustments, termination for incapacity may be considered after a fair process-see termination on medical grounds.

Key Takeaways

• You generally can’t fire someone for calling in sick if they’re genuinely unwell and provide reasonable evidence-focus on capacity, evidence and process.
• Dismissal may be lawful where an employee can’t perform the inherent requirements (after considering adjustments) or where misuse persists despite warnings.
• Set clear expectations in your Employment Contract and Workplace Policy about notice, evidence and return-to-work procedures.
• Follow a fair, documented process: request reasonable evidence, consult, consider adjustments, warn, reassess capacity, then decide.
• If termination is necessary, handle notice or payment in lieu and final pay correctly to reduce risk.
• When issues escalate, get tailored guidance-medical capacity and dismissal decisions carry real legal risk.

If you’d like a consultation on managing sick leave and capacity issues in your workplace, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.