Managing Excessive Sick Leave: Employer’s Legal Options In Australia

Running a business means you’ll occasionally deal with sick days. That’s normal and part of being an employer who cares about health and safety.

But when absences start to form a pattern, it can affect productivity, team morale and rostering. You might be wondering what counts as “excessive sick leave,” where the legal boundaries sit, and what practical steps you can take without risking a dispute.

In this guide, we’ll unpack what’s considered excessive sick leave in Australia, your obligations under the Fair Work Act, and how to manage frequent or unplanned absences fairly, lawfully and consistently.

You’ll also find practical tools and documents that make this easier in day-to-day operations, plus clear guidance on when dismissal might be considered - and the risks you need to manage first.

What Counts As Excessive Sick Leave In Australia?

Under the National Employment Standards (NES), full-time employees are entitled to paid personal/carer’s leave (often called “sick leave”) that usually equates to 10 days per year, with part-time employees receiving this on a pro‑rata basis. Casual employees don’t receive paid sick leave, though they may access unpaid carer’s or compassionate leave in certain circumstances.

There’s no single legal number that defines “excessive.” Instead, you assess the overall pattern, frequency and impact on your business. Indicators that may prompt a closer look include:

• Absences materially above typical entitlements over time (especially without adequate evidence)
• Frequent single‑day absences, particularly around weekends, public holidays or key business days
• Late notifications or non‑compliance with your evidence requirements
• Declining performance or disrupted operations linked to repeated absences

Importantly, “excessive” does not automatically mean “misuse.” Many employees experience genuine illness or injury, chronic conditions, or caring responsibilities. Your goal is to separate legitimate use from potential abuse - and to do so in a way that’s consistent, compassionate and compliant.

If you’re new to this topic, a helpful starting point is understanding the basics of taking sick leave in Australia, including what’s paid, how it accrues and when evidence can be requested.

Your Legal Obligations Under The Fair Work Act

Managing sick leave involves several overlapping obligations. At a high level, consider the following:

1) Personal/Carer’s Leave Entitlements

Employees covered by the NES receive paid personal/carer’s leave. This entitlement doesn’t create a general right to additional unpaid personal leave once paid leave is exhausted. However, you and an employee can agree to unpaid leave (for example, if they’re unwell and have no paid leave left), and other specific types of unpaid leave may apply in limited circumstances (such as unpaid carer’s leave for casuals or unpaid parental leave where eligible).

If your team is struggling with what happens once balances hit zero, you can set expectations in your policies and use fair processes for managing sick leave when entitlements run out.

2) Evidence Requirements

You can request “evidence that would satisfy a reasonable person” for absences - typically a medical certificate or statutory declaration. You may do this for any absence (including a single day) if that’s your policy and it’s applied consistently. For casuals, it’s also reasonable to outline when you expect evidence for unpaid carer’s leave; see our guide to medical certificates for casual employees.

3) Protection From Adverse Action

Employees must not be subject to adverse action (for example, dismissal, demotion or reduced shifts) because they exercise a workplace right, such as taking accrued personal leave for a genuine illness or injury. This is a key “general protections” risk.

4) Temporary Absence Protection (Section 352)

Under section 352 of the Fair Work Act 2009 (Cth), employers must not dismiss an employee because of a temporary absence from work due to illness or injury. A “temporary absence” is generally understood (with reference to the Fair Work Regulations) as less than three consecutive months off work, or a total of less than three months over a 12‑month period, where the employee provides required evidence/notifications.

Once an absence exceeds those thresholds, the specific section 352 protection may no longer apply. However - and this is critical - other laws still do. You need to carefully consider unfair dismissal risk, anti‑discrimination obligations (including reasonable adjustments for disability), consultation requirements in any applicable award or enterprise agreement, and whether the employee can perform the “inherent requirements” of their role with adjustments.

For dismissal risks and the procedural fairness factors the Fair Work Commission considers, review our guide to section 387 of the Fair Work Act.

Practical Steps To Manage Frequent Or Unplanned Absences

Beyond knowing the rules, you need a practical, repeatable way to handle attendance concerns. The steps below help you standardise your approach and demonstrate fairness.

Set Clear Policies And Communicate Expectations

Start by codifying how to report absences (who to contact, by when, and how) and what evidence is required. Make the policy accessible, talk it through at induction, and apply it consistently. A tailored policy in your staff handbook keeps everyone on the same page; many employers centralise these requirements in a single Staff Handbook or a standalone Workplace Policy.

Record Patterns And Impacts

Keep accurate records of notification times, evidence provided, and the operational impact (missed deadlines, re‑rostering, customer issues). This helps you identify patterns, manage risk, and show you’ve acted reasonably if a dispute arises.

Request Evidence Consistently

Apply your evidence rules uniformly. If you require a medical certificate for any sick day, say so in your policy and follow it for everyone. Consistency reduces arguments about unfair treatment.

Have A Supportive Conversation Early

Where patterns emerge, meet with the employee to understand what’s going on. Many attendance issues improve when employees feel heard and supported. Be clear about business impacts, set expectations, and agree on next steps. Confirm the discussion in writing.

Seek Medical Clarity Where Appropriate

If you’re unsure whether an employee is fit to work or if adjustments are needed, it may be reasonable to seek a fitness for work assessment or request further information. There are privacy and discrimination considerations here, so you should follow a careful process when requesting medical clearance to return to work.

Offer Reasonable Adjustments And Return-To-Work Planning

Where a health condition may amount to a disability, you have obligations to consider reasonable adjustments (for example, modified duties, hours or equipment) that don’t impose unjustifiable hardship. A written return‑to‑work plan can support a safe, staged transition and show you’ve engaged properly with the issue.

Manage Capability And Performance (Not Just Attendance)

If absences are affecting output, it’s appropriate to address performance or capability alongside attendance - but keep the focus on clear expectations, support and fair timelines. Use show‑cause or warning processes only after you’ve gathered facts, offered support, and ensured your evidence requirements have been met. Where relevant, follow the consultation requirements in any applicable award or enterprise agreement.

When Paid Leave Runs Out

Once an employee’s paid personal leave is exhausted, there is no general entitlement to further unpaid personal leave under the NES. You and the employee may agree to unpaid leave, the employee may use annual leave (if appropriate), or you may discuss other options like adjustments, redeployment or a capability process. We’ve outlined common approaches to managing sick leave when entitlements are gone.

Can You Dismiss An Employee For Excessive Sick Leave?

Sometimes, despite support and adjustments, ongoing absence may continue. Dismissal is possible in certain circumstances - but it’s a high‑risk decision that requires a careful, step‑by‑step approach.

First, Check The “Temporary Absence” Protection

If the employee is within the temporary absence period (generally less than three consecutive months or less than three months total across 12 months, with proper evidence), you must not dismiss them because of the illness or injury. The protection under section 352 is specific and serious.

Then, Consider All Other Legal Risks

Even if section 352 may no longer apply due to the length of absence, other risks remain:

• Unfair dismissal: you’ll need a valid reason and a procedurally fair process, including proper notice of issues, an opportunity to respond, and consideration of any response. See the factors the Commission weighs in section 387.
• Discrimination: if illness amounts to a disability, you must consider reasonable adjustments and avoid discriminatory decisions.
• Inherent requirements: if relying on incapacity, ensure up‑to‑date medical information supports the assessment that the employee cannot perform the inherent requirements with reasonable adjustments.
• Award/EA obligations: follow any consultation or procedural steps required by a modern award or enterprise agreement.
• General protections: avoid any suggestion the dismissal is because the employee exercised a workplace right (for example, taking personal leave).

Follow A Structured, Evidence-Based Process

Where termination is contemplated, a fair process usually involves:

• Gathering medical information (with consent) about capacity and prognosis
• Assessing adjustments, redeployment or role modifications
• Consulting as required and documenting each step and decision
• Issuing clear correspondence (for example, letters inviting response, and any show‑cause process)
• Ensuring notice or payment in lieu is handled correctly, and understanding how sick leave interacts with the notice period

Because the stakes are high, it’s wise to get tailored advice before making a final decision.

What Documents And Policies Help You Stay Compliant?

Good documentation makes absence management clearer for employees and safer for your business. The following tools are worth considering:

• Employment Contract: Set out entitlements, how leave is requested, evidence requirements and expectations around communication. If you hire staff regularly, a robust Employment Contract for full‑time or part‑time roles and a separate casual version helps keep things consistent.
• Workplace Policy/Staff Handbook: A central place for your notification rules, evidence standards, return‑to‑work process and the circumstances in which medical information may be requested. Many employers bundle these in a Staff Handbook.
• Performance Management Materials: Templates for meeting invitations, support plans and (if needed) show‑cause letters help you follow a fair capability process. Our guide to show‑cause letters explains how to use them appropriately.
• Return-To-Work Plan: A short plan for staged duties or hours, signed by you and the employee, supports safe reintegration and shows you’ve considered reasonable adjustments.
• Medical Evidence Templates: A standard statutory declaration template and clear instructions for medical certificates reduce back‑and‑forth and keep expectations consistent.

You don’t need every document on day one, but the right mix of contracts and policies, tailored to your team and industry, makes a big difference when patterns of absence emerge.

Key Takeaways

• There’s no fixed legal number for “excessive sick leave” - look at patterns, evidence and business impact, and differentiate between genuine illness and potential misuse.
• Section 352 protects employees from dismissal because of a temporary absence due to illness or injury; even after that period, unfair dismissal, discrimination and general protections risks still apply.
• Set clear policies, require reasonable evidence consistently, keep good records, and have early, supportive conversations to resolve issues before they escalate.
• When paid personal leave runs out, there’s no general entitlement to unpaid personal leave under the NES; you can agree to unpaid leave, consider adjustments or move to a capability process using a fair, documented approach.
• If termination is contemplated, follow an evidence‑based process: obtain current medical information, consider reasonable adjustments and redeployment, comply with any award/EA consultation, and address the section 387 fairness factors.
• Strong foundations - an Employment Contract, a practical Workplace Policy or Staff Handbook, and clear templates - help you stay compliant and reduce disputes.

If you’d like a consultation on managing excessive sick leave or broader employment law questions in your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.