Employee absenteeism is one of the questions I receive most regularly from leaders and business owners. My advice is always the same starting point: before you do anything, find out what is actually happening in the employee’s world.
It is easy to assume the worst, particularly when absences are frequent and the pattern feels suspicious. But in my experience, most absenteeism is genuine. The more useful question is not “how do I get rid of this person” but “how do I support this employee while also protecting the business and the rest of the team?”
Sometimes that support looks like a temporary adjustment to hours or a transition to part-time work while the employee stabilises. That kind of practical flexibility can reduce the unpredictability for everyone, give the employee a clearer path back, and demonstrate that the business has acted reasonably if the matter ever progresses further.
Where you stand legally
Under the Fair Work Act 2009 (Cth), you cannot take adverse action against an employee who is absent from work due to a temporary illness or injury. Adverse action includes termination, demotion, or any action that disadvantages the employee because of their absence.
The definition of temporary is important here. Temporary means the employee has been absent for less than three months in any 12-month period. Those months do not need to be consecutive. An employee who takes two weeks off in March, six weeks in June and another six weeks in October has reached three months even though no single absence was lengthy.
I understand why this feels difficult in practice. Three months of absence in a year is a significant operational burden, particularly for small businesses where one person’s absence has an outsized effect on the rest of the team. The law does not make it easy, but it does give you a process to follow.
| You cannot take adverse action against an employee absent due to temporary illness or injury. Temporary means less than three months in any 12-month period. Those months do not need to be consecutive. |
What you can do during the three-month period
While the employee is within the protected period, there are practical steps you can and should take.
Maintain contact
Stay in regular, reasonable communication with the employee. This does not mean pressuring them to return before they are ready, but it does mean keeping the relationship open and demonstrating genuine care. A brief check-in every one to two weeks is appropriate.
Request medical evidence
You are entitled to ask the employee to provide a medical certificate or statutory declaration for any absence. Under the Fair Work Act, an employee who does not provide evidence when reasonably required may not be entitled to paid personal leave for that absence.
Document everything
Keep clear records of each absence, the dates, the reason provided, the evidence supplied and any conversations you have had. If the matter progresses, your documentation will be critical.
Consider a return to work plan
If the employee is recovering from an illness or injury, work with them and their treating practitioner to establish a structured return. This might involve modified duties, reduced hours or a phased schedule. A well-managed return to work plan protects both the employee and the business.
Address conduct separately
If the employee is taking frequent short absences without adequate explanation, and you have reason to believe those absences are not genuine, that is a conduct matter that can be managed through your performance and conduct process. This is distinct from managing genuine illness or injury and requires a different approach.
What to do after three months
Once an employee has been absent for more than three months in a 12-month period, the protection against adverse action no longer automatically applies. However, this does not mean you can proceed directly to termination. You still need to follow a fair and reasonable process.
The first step is to obtain medical information about the employee’s condition and prognosis. You can request that the employee provide a medical report from their treating practitioner, or ask them to consent to an independent medical examination. What you are trying to establish is whether the illness or injury is affecting the employee’s ability to perform the inherent requirements of their role, and if so, for how long.
Once you have that information, you need to have a genuine conversation with the employee about their situation. Explain the impact the absences are having on the business, give them an opportunity to respond, and explore whether any reasonable adjustments could be made to support their return. This step matters both legally and practically. If you skip it and proceed to termination, you risk an unfair dismissal or general protections claim even outside the protected period.
If the medical evidence confirms that the employee is unable to perform the inherent requirements of their role in the foreseeable future, and no reasonable adjustment can accommodate them, termination may be an option. At that point you would need to provide the appropriate notice period under the Fair Work Act or their employment contract, whichever is greater, and ensure the termination is handled with care and documented clearly.
A note on general protections
Even where a termination is legally defensible, an employee may still bring a general protections claim if they believe the termination was motivated by their illness or injury rather than their inability to do the job. These claims can be made regardless of whether the employee is eligible for unfair dismissal, and they carry significant penalties. Taking proper process seriously from the beginning is the most effective protection against this outcome.
My practical advice
If you are dealing with repeated absenteeism right now, start by having a genuine conversation with the employee. Document it. Request medical evidence consistently. Keep communication respectful and regular. And if you reach the point where you are considering termination, do not act without getting advice first.
Every situation is different, and the right approach depends on the nature of the absence, the size of your business, the employee’s length of service and a range of other factors. Getting it wrong is costly. Getting it right protects everyone.
| If you would like to talk through a specific situation, I am happy to help. Book a free 15-minute discovery call or call 1300 174 394. |