Fair Work Commission

Section 352

An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

What is the protection?

An employer must not dismiss an employee because the employee was temporarily absent from work due to an illness or injury.

Are there exceptions?

There are 2 exceptions.

Firstly, this protection only relates to an employer dismissing an employee.

Secondly, an employee will not be protected if:

• the employee’s absence extends for more than 3 months

OR

• the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries)

AND

• the employee is not on paid personal/carer’s leave for the duration of the absence.^[1]

Substantiation requirements

Regulation 3.01 Temporary absence – illness or injury

1. For section 352 of the Act, this regulation prescribes kinds of illness or injury.

   Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

2. A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

   1. 24 hours after the commencement of the absence; or
   2. such longer period as is reasonable in the circumstances.

   Note: The Act defines medical certificate in section 12.

3. A prescribed kind of illness or injury exists if the employee:

   1. is required by the terms of a workplace instrument:

      1. to notify the employer of an absence from work; and
      2. to substantiate the reason for the absence; and
   2. complies with those terms.

4. A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3) (a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.

   Note: Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.

5. An illness or injury is not a prescribed kind of illness or injury if:

   1. either:

      1. the employee’s absence extends for more than 3 months; or
      2. the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
   2. the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.

6. In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.

When does the protection apply?

The protection will only apply if the employee satisfies at least one of the substantiation requirements set out in the regulations:

1. The employee provides a medical certificate or statutory declaration about the illness or injury within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances.

   A medical certificate is defined in s.12 as meaning ‘a certificate signed by a medical practitioner’.

   A medical practitioner is defined in s.12 as meaning ‘a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides registration and licensing of medical practitioners’.

   OR

2. If the employee is required by the terms of a workplace instrument to notify the employer of an absence from work and to substantiate the reason for the absence, the employee complies with those terms.

   A workplace instrument is defined in s.12 as meaning ‘an instrument that is made under, or recognised by, a workplace law and concerns the relationships between employers and employees’.

   A workplace law is defined in s.12 as meaning 'this Act or the Registered Organisations Act or the Independent Contractors Act 2006 or any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)'.

   OR

3. If required by the employer, the employee gives the employer evidence that would satisfy a reasonable person that the leave is taken because the employee is not fit for work because of a personal illness or personal injury affecting the employee

How is this applied?

The Courts have not yet addressed how a temporary absence should be calculated in order for the exception to be applied under the current Act and Regulations. However, decisions issued under predecessor Acts and Regulations could provide guidance on how this should be done.^[2]

The Courts have previously decided that where a continuous period of leave is made up of various types of leave, for example, annual leave, paid sick leave and unpaid sick leave, the period is treated as a single absence from work.^[3]

The regulations expressly state that a period of paid personal/carer’s leave does not include a period when the employee is absent from work while receiving workers’ compensation.

Regulation 3.01 has been found to contain all of the situations where illnesses or injuries will support a claim under s.352.^[4] If a particular absence does not fall within the scope of the regulation, the protection will not apply, even if in ordinary language it would be regarded as a temporary absence.^[5]

For an employer to act in breach of s.352, there must be an awareness that the absence was because of an illness or injury and this absence must have been the reason for the termination. This means that the employer must prove that they either did not know the reason for the absence or that they did not terminate the employment because of the absence.^[6]

The Courts have confirmed that s.352 does not preclude the dismissal of an employee while the employee is temporarily absent from work because of an illness or injury. If the employee may be dismissed validly it is not to the point that the decision to dismiss happens to be made while the employee is on leave.^[7]

Case examples

References