Employee absences: understanding Temporary Absence Protections under the Fair Work Act

Managing employees who are absent due to illness or injury can be challenging for employers, particularly where the absence becomes prolonged. While employees are entitled to access personal leave and take time away from work when unwell or injured, employers also have operational, safety and legal obligations to consider.

Importantly, the Fair Work Act 2009 (Cth) (‘the FWA’) provides protections for employees who are temporarily absent from work due to illness or injury. However, those protections are not indefinite.

What does the Fair Work Act say?

Section 352 of the FWA prohibits an employer from dismissing an employee because they are temporarily absent from work due to illness or injury where the absence is:

• Supported by a medical certificate or other evidence that would satisfy a reasonable person; and
• For a period of up to three months continuously, or periods totalling up to three months over a 12-month period.

This protection applies regardless of whether the absence is paid or unpaid.

Once an employee’s absence exceeds three months continuously, or accumulates to more than three months over a 12-month period, the absence may no longer be regarded as “temporary” for the purposes of the legislation. At that point, the employee may lose the specific protection against dismissal under s.352 of the FWA.

That does not mean an employer can automatically terminate employment once the three-month threshold has been reached. Employers must still ensure any action taken is lawful, procedurally fair, and based on a valid reason.

Key consideration: Capacity to perform the inherent requirement of the role

Employers cannot terminate an employee simply because the employee has an illness, injury, or mental health condition. The focus must instead be on whether the employee can perform the inherent requirements of their role, with or without reasonable adjustments.

This distinction is critical and will determine if the termination is based on a valid reason.

Any discussions regarding employment termination should focus on:

• Capacity to perform the inherent requirements of the role;
• Performance concerns arising from incapacity; or
• Workplace safety considerations.

Key take-aways for members:

Employers should remember that employees are protected from dismissal while they are temporarily absent from work due to illness or injury, provided the absence does not exceed three months over a 12-month period and is supported by appropriate medical evidence. Once that protection period has been exceeded, employers may lawfully consider termination, but only where there is a valid reason.

If you have any questions about employee management, please contact the Workplace Relations Team:

📞 (02) 6175 5900
📧 workplace@mba.org.au