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Home / Resources / Can you fire someone for too many sick days?
Legal explainer · 8 min read

Can you fire an employee for too many sick days in Australia?

Short answer: usually no. You do not dismiss someone for taking legitimate paid sick leave, and you rarely dismiss anyone without a careful, documented process. This guide shows you what the Fair Work Act protects, where the lines sit, and the constructive path most employers should take long before dismissal.

Important. This guide gives general information, not legal advice. Dismissal decisions turn on the facts. Getting one wrong invites an unfair dismissal or general protections claim, and the cost runs high. Before you act, contact the Fair Work Ombudsman on 13 13 94 or a qualified employment lawyer.

What the law protects

Three layers of protection sit between you and a dismissal for absence. Learn them, and you keep a frustrating situation from becoming a costly claim.

1. The NES entitlement to paid leave

Full-time and part-time employees earn 10 days of paid personal and carer's leave per year under the National Employment Standards. The leave accrues progressively and carries over.¹ Taking leave you owe someone is not, by itself, misconduct.

2. General protections, temporary absence

Section 352 of the Fair Work Act 2009 makes dismissal unlawful when you dismiss an employee because of a temporary absence through illness or injury. When the employee provides evidence, for example a medical certificate, the employee keeps protection for an absence under 3 consecutive months, or under 3 months in total over a 12-month period. An employee who uses paid personal leave for the whole absence keeps protection for the absence, whatever the length.²

3. Unfair dismissal and discrimination law

Outside those rules, eligible employees still bring an unfair dismissal claim when a dismissal is harsh, unjust, or unreasonable. A dismissal tied to a disability or illness also raises discrimination issues. Process matters as much as the reason.

When does an employer act lawfully?

Some situations let you manage or end employment lawfully. Those situations stay narrow and procedural, narrower than most frustrated managers assume.

Prolonged incapacity beyond the threshold

An absence runs past the 3-month protection, paid leave runs out, and medical evidence shows the employee will not meet the inherent requirements of the role for the foreseeable future. Dismissal stays lawful here, but only after a fair process, medical evidence, and reasonable adjustments.

Unauthorised absence or dishonesty

No-shows without notice, refusing reasonable requests for evidence, or faking illness are conduct issues, separate from genuine sick leave. These still need a fair process. Raise concerns, allow a response, document everything.

The line to hold: you do not dismiss someone for being sick. With care and process, you act on a prolonged inability to do the job, or on genuine misconduct in how someone takes absences. Confusing the two is the most common and most expensive mistake.

Questions employers ask

Can I ask for a medical certificate for a single day off?
Yes. You require reasonable evidence of a genuine reason. Evidence includes a medical certificate or statutory declaration, and applies even to a single day. The key word is reasonable. Apply the rule across the whole team rather than singling someone out.
What if someone has run out of paid sick leave?
They take unpaid leave for a genuine illness. Running out of paid leave does not remove the general protections. The temporary-absence rules still apply on duration and evidence. The situation does change the conversation, and often marks the point to seek advice.
Is a clear day-of-week pattern enough to discipline someone?
A pattern gives you a reason to talk, not a reason to discipline on its own. Many Monday patterns have legitimate causes: caring duties, a chronic condition, a roster issue. Document the pattern, raise the pattern respectfully in a return-to-work conversation, and hear the explanation before you reach a conclusion.
Do casual employees get the same protections?
Casuals do not accrue paid personal and carer's leave under the NES. They receive casual loading instead. General protections and anti-discrimination laws still apply to how you treat them. Do not assume casual status removes all risk.

The better question to ask first

By the time you ask whether you fire someone, the absence has built for months, unmanaged. Ask a sharper question. What does the pattern tell me, and did anyone ever have the conversation?

A structured return-to-work conversation after each absence does two jobs. The conversation gives the employee a fair, documented chance to explain and to get support, the process Fair Work expects. The conversation also links to roughly a 30 percent drop in repeat short-notice absences.³ Most excessive-absence problems never reach dismissal when you hold the conversation early and record the outcome.

Track the pattern before things escalate.

Absence keeps a timestamped, Privacy Act-friendly record of every absence and return-to-work conversation. You get the documented, fair process, and you protect your people and your business. Free for teams of 5.

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Sources and notes

  1. Fair Work Ombudsman, paid sick and carer's leave under the National Employment Standards. 10 days per year full-time, pro-rated part-time.
  2. Fair Work Act 2009 section 352 and Fair Work Regulations on temporary absence through illness or injury. Fair Work Commission guidance on the 3-month threshold and the protection when paid personal leave covers the whole absence.
  3. Safe Work Australia and Direct Health Solutions research linking structured return-to-work interviews to reduced repeat absence.

General information only, current as at May 2026, and not a substitute for legal advice. Laws and thresholds change. For your situation, contact the Fair Work Ombudsman on 13 13 94 or a qualified employment lawyer.