Can My Boss Fire Me for Being Sick? — Sick Leave Rights Australia (2026)

Generally, no — dismissing an employee for taking genuine sick leave is likely unlawful. Under section 352 of the Fair Work Act, it's illegal for an employer to dismiss an employee because they're temporarily absent due to illness or injury. This protection applies if: (1) The absence is supported by a medical certificate or statutory declaration. (2) The employee has not been absent for more than 3 months in total (or 3 months in the last 12 months), unless on paid personal leave for the entire period.

If you're within these limits, your employer can't lawfully fire you for being sick.

An employer may be able to lawfully dismiss a sick employee if: (1) The employee has been absent for more than 3 consecutive months and isn't on paid sick leave. (2) The employee has exhausted all paid sick leave and there is no reasonable prospect of returning to work in the near future. (3) The employee's ongoing absence makes it impossible to continue the employment relationship (frustration of contract). (4) The employee has provided false medical certificates or is not genuinely sick. Even in these situations, the employer must follow a fair process — including consulting with the employee, considering alternative duties, and giving proper notice. A dismissal that skips these steps may still be unfair.

Full-time employees receive 10 days of paid personal/carer's leave per year under the NES. Part-time employees receive a pro-rata amount based on their ordinary hours. Sick leave accumulates year to year with no cap — so after 5 years, you could have 50 days accrued (minus any used).

Casual employees do not receive paid sick leave but have the right to 2 days of unpaid carer's leave per occasion. Your employer can ask for a medical certificate or statutory declaration for any absence, though many employers only require evidence for absences of 2+ days or for patterned absences (e.g., every Monday).

An employer can't take adverse action against you for exercising your right to take sick leave. Adverse action includes: demotion, reducing your hours, changing your role, giving you unfavourable duties, or making threats. If your employer disciplines you or treats you differently because you've taken legitimate sick leave, this may be a general protections breach.

Document the adverse action, keep copies of medical certificates, and contact the Fair Work Ombudsman. You may be entitled to compensation if you have been penalised for using your sick leave entitlement.

If you have been dismissed while on sick leave: Step 1: Check whether your absence was less than 3 months and supported by medical evidence. If so, the dismissal may be unlawful under section 352. Step 2: Check if you have been employed for more than 6 months (or 12 months for a small business).

If so, you may be able to lodge an unfair dismissal claim. Step 3: Lodge your claim with the Fair Work Commission within 21 days of the dismissal taking effect.

Step 4: Contact the Fair Work Ombudsman on 13 13 94 for free advice. You may also have a general protections claim if the dismissal was because of a disability or illness (discrimination).