Australia: When can employment be terminated for absence from work due to injury or illness?

Employers, regardless of any suspicions, should be very careful when considering termination of an employee whose absence due to illness is supported by medical opinion.

Injury/Illness and Dismissal

The Fair Work Act 2009 ("the Act") makes it unlawful for an employer to dismiss an employee because of a "temporary" absence from work through illness or injury (section 352). The absence will be deemed "temporary" if the employee provides a medical certificate within a reasonable time or otherwise complies with any relevant notice and evidential requirements in the National Employment Standards ("NES"), an award or agreement. However, the absence ceases to be "temporary" if it exceeds 3 months or where the employee's total absences over a 12 month period exceed 3 months, not counting time on paid personal/carers leave.

Importantly, even if an employee's absence due to an illness or injury continues until it is no longer "temporary" that does not necessarily mean an employer may terminate the employee's employment without consequence. The employee's long term lack of fitness to fulfil their duties may well provide a reasonable ground for their termination but this cannot be automatically assumed, and all of the usual considerations regarding dismissal still apply.

The decision of Federal Magistrate Dominica Whelan in Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology) highlights the importance of employers appreciating that an employee may be unfit to perform their work duties while remaining fit to undertake other activities, and demonstrates the caution employers need to exercise when they suspect an employee of malingering.

Mr Marshall was an employee of the Bureau of Meteorology (BoM) who alleged he was subjected to bullying and harassment resulting in him going on personal leave due to stress. His entitlement to personal leave was supported by medical evidence from his GP.

Mr Marshall had the previous year applied to be a contestant on reality television show Beauty and the Geek and while on stress leave in May 2011 was contacted and asked if he would be interested in participating in an upcoming series. Mr Marshall had discussed his participating in the show with his GP who had certified him fit to meet his contractual requirements to participate in Beauty and the Geek. Mr Marshall's GP gave evidence that he thought "going on the show wouldn't necessarily trigger or aggravate [his] symptoms".

Mr Marshall was seen by the Australian Government Medical Officer (AGMO). The conclusion of the AGMO's report is not described in the judgment, but following a meeting between Mr Marshall and BoM to discuss the report Mr Marshall was directed to resume work at the Brisbane Regional Office on 8 July 2011.

On 5 July 2011 Mr Marshall saw both his psychologist and his GP. The GP issued a medical certificate dated 6 July 2011 stating that Mr Marshall was suffering from:

"A recurrence of traumatic stress symptoms relating to his recent anxiety state as documented in previous correspondence... He will be unfit to continue his usual occupation – but would be fit for modified duties doing field work and located in Victoria or near area closer to home in neighbouring states as part of a planned Return to Work (RTW) Plan for the period 5 July 2011 to 23 July 2011 inclusive...Due to his current state of health I have advised him not to go to Brisbane due to the work not being as we had advised and note that the work doctor – AGMO – had concurred with the type of RTW Plan both I and [Dr] S.McEwan had recommended."

On 8 July Mr Marshall failed to attend for work and was then issued with a show cause letter. Mr Marshall did not respond to this letter. Mr Marshall's employment was terminated on the ground of non-performance of duty.

BoM suggested the certificates issued by Mr Marshall's GP certifying him unfit to perform his duties at BoM but fit to participate in Beauty and the Geek was evidence of collusion between Mr Marshall and his GP. Alternatively, BoM alleged that Mr Marshall had manipulated both his GP and psychologist into believing he was suffering a recurrence of symptoms.

Federal Magistrate Whelan did not accept there had been collusion, and stated that Mr Marshall "did not have the sophistication necessary to manipulate both [his medical advisers].." Further, that there was no evidence that Mr Marshall's GP was dishonest.

Federal Magistrate Whelan held:

"I am satisfied that the medical evidence was sufficient to establish that the Applicant was 'medically unfit' to attend for work in Brisbane on 8 July 2011 or at any time up until his dismissal by the Respondent. I am further satisfied the medical certificates supplied objectively constituted satisfactory medical evidence of his medical unfitness."

The Magistrate held BoM had taken adverse action against Mr Marshall in dismissing him and ordered reinstatement and compensation for earnings lost between the termination and the judgment.

Summary – warning to employers

Even where employers have doubts about the honesty of an employee's alleged injury or illness, extreme caution should be exercised by employers who are considering terminating the employee's employment for failure to perform duties due to a temporary absence from work. Employers should first consider whether there is convincing evidence of malfeasance, and/or medical evidence that overwhelmingly contradicts the medical evidence in favour of the employee.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions