A common question raised by employers is whether an employee can be dismissed whilst the employee is absent on personal/carer’s leave or annual leave. The question is common because employees often retreat onto leave when the employment relationship becomes dysfunctional, due to stress arising from disciplinary action, or to delay their dismissal.
There is no universal statutory prohibition on dismissing employees who are absent on personal leave or annual leave. However there are significant risks for doing so.
General Protections risks
The ‘General Protections’ within the Fair Work Act 2009 make it unlawful to dismiss an employee because of the employee’s use of leave. Specifically, it is unlawful to dismiss an employee because he or she is ‘temporarily absent due to illness or injury’. A ‘temporary absence’ is defined as an absence lasting less than three months, supported by appropriate medical evidence. In addition, it is unlawful to dismiss an employee because of the employee’s physical or mental disability, family or carer’s responsibilities, pregnancy status, or religion. As a practical matter, these characteristics may require the employee to take personal/carer’s leave, annual leave, or parental leave from time to time. Any decision to dismiss an employee because of leave taken as a result of these characteristics will be in contravention of the General Protections.