For employees
Dismissed while sick or injured: what the law protects, and when to get advice
Being dismissed while you are off sick, recovering from an injury, or on a workers compensation claim is one of the situations the Fair Work Act protects most directly. The protection is real but it has edges: it covers a temporary absence, not a permanent incapacity, and it runs out after a set period of unpaid absence. This page sets out what is protected, what is not, the 21-day deadline, and where a lawyer earns their fee.
Updated . General information, not legal advice.
Time limits that apply
| What | Limit | Source |
|---|---|---|
| General protections application (dismissal because of temporary absence) | 21 days from the dismissal | Fair Work Act s 366 |
| Temporary absence protection limit | Protection generally ends after more than 3 months' unpaid absence in a 12-month period | Fair Work Act s 352; Fair Work Regulations reg 3.01 |
| Unfair dismissal application (alternative claim) | 21 days from the dismissal taking effect | Fair Work Act s 394(2) |
Do you need a lawyer for this?
Advice usually pays for itself when
- You were dismissed while on a workers compensation claim or shortly after lodging one. State compensation laws add their own protections on top of the federal ones, and the interaction is complex.
- The employer says you can no longer do the job and you disagree, or you were never asked for medical evidence before the decision.
- Your absence is approaching, or has passed, three months unpaid in a twelve-month period, because that is where the protection thins out.
The free route is usually enough when
- You have returned to work, the dismissal did not happen, and your question is about sick leave entitlements and evidence, which the free tools cover.
- The dismissal was clearly for an unrelated, documented reason and the timing is coincidental.
What does the temporary absence protection cover?
An employer must not dismiss you because you are temporarily absent from work due to illness or injury. The absence has to be supported in the way the regulations require, which in practice means a medical certificate or a statutory declaration provided within a reasonable time, or paid personal leave. The protection generally continues while the absence is paid personal leave, and for unpaid absence it runs until you have been away for more than three months in a twelve-month period, counted as a single stretch or added up. Past that point the specific protection ends, though the general prohibition on dismissing someone because of a physical or mental disability, and ordinary unfair dismissal rules, still apply.
What is not protected?
A dismissal that is genuinely for another reason, such as a redundancy that would have happened anyway or serious misconduct that predates the illness, is not caught, though the timing will be scrutinised. A permanent incapacity to perform the inherent requirements of the job is a different question from a temporary absence, and employers can lawfully end employment on that basis if they have proper medical evidence and have considered reasonable adjustments. Failing to provide evidence of the illness when asked can take you outside the protection. The line between temporary and permanent is where most of these disputes live, and it is a medical and legal question at the same time.
Which claim applies?
Dismissal because of a temporary absence is a prohibited reason, so the claim is a general protections claim, lodged within 21 days on the Commission's Form F8. The reverse onus applies: once you show the dismissal and the protected absence, the employer must prove the absence was not a reason. There is no compensation cap. Unfair dismissal is the alternative if you meet the six-month minimum period, and it can succeed where the employer's process was poor even if it can prove an unrelated reason. You cannot run both over the same dismissal, and the choice is worth advice. If the illness or injury is work-related, your state's workers compensation law may add a separate prohibition on dismissal within a set period after the injury, which is not set out here.
What evidence matters?
Medical certificates and when you gave them to the employer. The employer's requests for evidence and your responses. Any correspondence about return-to-work plans, adjustments, or light duties. The termination letter and its stated reason. If the employer gave no reason, the request for one and the reply. Dates matter enormously here because the three-month threshold is arithmetic. Keep your own tally of paid and unpaid days off. A lawyer will usually want the employer's file too, and the process allows for that. What weakens a claim is a gap in certificates, an absence the employer never knew the reason for, or a return-to-work plan you did not engage with.
When does a lawyer pay for itself?
Almost always when workers compensation is involved, because two systems interact and each has its own deadlines and forms. When the employer is arguing permanent incapacity and you believe you could return with adjustments. When the absence count is close to three months. And when the employer offers a payment to sign a deed while you are still unwell and not in a position to weigh it. Liquid Employment Lawyers is FairWork Mate's paid legal partner for these matters, a law firm rather than free government help, and they set out scope and fees before you commit. The value is in the claim choice and the medical-legal interface, not in the form.
What is the free route?
The Fair Work Ombudsman on 13 13 94 explains sick leave entitlements and the temporary absence rules, and recovers unpaid personal leave and final pay at no cost. FairWork Mate's tools are free: the general protections checker tests the elements, the fired-for-being-sick guide covers the evidence rules, and the workers compensation dispute navigator explains the compensation side in general terms. This is general information, not legal advice, and FairWork Mate is not affiliated with the Commission or the Ombudsman.
Free FairWork Mate tools for this
Talk to Liquid Employment Lawyers about this
Share a few details and their team will be in touch to talk it through. No obligation, and you decide whether to go further after that first conversation.
Liquid Employment Lawyers is an Australian employment law firm and FairWork Mate's paid referral partner, not free Fair Work advice. They discuss scope and any fees with you directly. FairWork Mate is not affiliated with the Fair Work Commission or the Fair Work Ombudsman. For free general guidance, use the tools above or call the Fair Work Ombudsman on 13 13 94.
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Common questions
I have been off unpaid for four months. Am I still protected?
The specific temporary absence protection generally ends once unpaid absence exceeds three months in a twelve-month period. Other protections may still apply, including the prohibition on dismissal because of a disability and, if you have six months' service, unfair dismissal. Whether the employer followed a fair process still counts.
Can my employer ask for a medical certificate?
Yes, and providing one within a reasonable time is part of what keeps you inside the protection. A statutory declaration is an alternative in some circumstances. Refusing to provide any evidence when asked is the single easiest way to lose the protection.
I was dismissed while on workers compensation. Is that automatically unlawful?
Not automatically, but it is heavily regulated. The federal temporary absence protection applies, and state workers compensation laws add their own rules about dismissal after a work injury, which are not stated here. This combination is exactly where advice is worth paying for.
Is Liquid Employment Lawyers free?
No. It is an Australian employment law firm and FairWork Mate's paid referral partner. Enquiring is free and there is no obligation. The free official route is the Fair Work Ombudsman on 13 13 94.
What is the deadline?
Twenty-one days from the dismissal for either a general protections or an unfair dismissal application to the Commission. Lodge first and refine the claim afterwards if you are still gathering medical evidence.
Official sources
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General information and estimates only — not legal, financial or tax advice. Always check your specific award, agreement or contract, or a qualified professional, before you rely on the result.
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