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


Terminating an employee for assumed malingering is not a wise decision according to this article. Even if the employee (worker) is performing tasks out of the workplace that the employer assumes proof of malingering.

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

12 December 2012
Article by Nicole Dunn

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.


Older piece of research. Discussing the trauma of a violent workplace injury and how that injury relates to “malingering”.

Malingerers or Maligned: Violent Workplace Crime, Psychological Injury and Workers’ Compensation

Paul Marks
Department of Legal Studies


This paper examines the institutional response to increasing numbers of claims for stress-related injury in the workplace. All workers who make claims for stress-related injury are viewed as a homogonous group despite striking variations in aetiology. Despite the focus on aetiology, the idea that many of these claimants are malingerers prevails. I challenge that view using the preliminary results of my research. The primary source of data is from interviews with workers who suffered psychological injury because of their involvement in a violent workplace incident.


6 Responses to “When can employment be terminated for absence from work due to injury or illness?”

  1. http://www.workcover.nsw.gov.au/formspublications/publications/Documents/retail_industry_return_to_work_kit_employers_547.pdf
    @workcoverwatch twittered this useful link concerning employer responsibilities. Many thanks. Cheers.

    • Thanks very much.

      The document shows the standard Workcover bullying and adversarial stance against injured workers as it warns Employers that workers make false claims!

      Interesting also to note: “the insurer’s decision to dispute or deny the claim can only be based on facts, not on hearsay or your “gut feeling”!

      Something new here!

  2. Sounds like a visit to the Workcover Ombudsman. I find it handy to email certificates and take records of documents. Use registered mail. Anything that proves your employer had received documentation. I gave up talking in my Workcover scenario a long time ago. Substituded it for documenting. Even a little note outlining a conversation with your employer is enough to show the subject was discussed. Anyway, to my knowledge. Abandonment can only occur if you leave your job with no notice for 3 days. If your Dr supports those days that is not abandonment. If you can prove contact with your employer within those 3 days. Eg phone calls. I don’t think they have a case. I’m sure there are others who know more than me.

    • Of course they know everything they did is illegal. Did I forget to mention the investigator bullied me, insulted my GP, didn’t interview the offenders at workplace, the investigation report is incomplete and misleading and biased to favor the Employer? Did I mention the IME told lies about me? Wait a moment, who is behind all of this, don’t tell me is the insurer???

      I’m collecting evidences and I guess the Ombudsman will get at least a 15 page complain!

  3. Thanks for very helpful article!

    Here is my case study: what happens when an injured worker inform the Employer of the injury BUT the Employer sack him/her saying “abandonment”? Add that the Employer NEVER submitted the Certificate of Capacity to the insurance, add that WorkSafe washed their hands and took NO action, add that the insurance REJECTED the claim by telling LIES?

    I see a big fight here!

    • Interesting reading, im also experiencing many of the issues you are talking about .  employer not responding to bullying complaint over a 6 month period, workcover claim accepted, still wont acknowledge, no RTW plan or acceptance of injury by the employer.  worksafe investiged and came up with nothing – internal review intestiged their bullying department and came up with an overturned result as they had much evidence that the bullying department had not looked at (over a 12 month peroid )  bullying department – not acknowledging overturned decision, revert to original – worksafe wont respond to my complaint or return call, will not communicate.  Emplyer has terminated my employemt due to 52 weeks on obligation expired.  Where do i go to from here, anyone know – still on workcover certificates of capacity, what a mess