Half of all Australians live with a chronic disease. This can create a complex intersection with employment. 

Naturally, people battling a permanent or temporary condition are likely to need flexibility, understanding, and a significant amount of time off work. However, long-term absent workers are frequently labelled as ‘problem employees’ and find themselves being ‘case managed’ by HR.  

With disability discrimination being one of the most common bases of a discrimination complaint, managing illness and employment is fraught with difficulty.  

For the employee, taking action can be confusing. There are a multitude of potential pathways for an employee to raise a grievance relating to disability discrimination, and deciding which way to go should be the subject of professional advice.  

The purpose of this article – which is suitable for both employees and employers – is to outline the protections that exist against dismissal for employees managing illness and long-term absence.  

1. Option one – Fair Work Act 2009 (Cth) (‘FW Act’)  

The FW Act, which applies to most employees throughout Australia, contains multiple provisions that aim against arbitrary dismissal or adverse action for someone suffering from a permanent or temporary disability.  

Section 340(1) of the FW Act – exercising a workplace right  

Section 340(1) provides that a person must not take adverse action against another person because that person has a workplace right, or has exercised a workplace right, or proposed to exercise a workplace right. This means, for example, that an employee must not be dismissed, discriminated against, or subject to other adverse action because they used, or proposed to use, their personal leave.  

Section 351(1) FW Act – discrimination  

In addition to protecting an employee’s right to exercise a workplace right, the FW Act also provides, at section 351(1), that an employer must not take adverse action against an employee because of their physical or mental disability, thus creating an additional cause of action for a dismissed employee.  

Section 352 FW Act – temporary absence due to illness or injury  

For an employee who has exhausted their personal leave, the FW Act contains further protection. Section 352 provides that an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. 

The FW Regulations go on to provide that a temporary absence means an absence of up to three months, or a three-month absence within a twelve-month period, meaning that during this period an employee has this additional protection against dismissal.  

The protection against dismissal for a temporary absence due to illness or injury, and the protection against discrimination because of physical or mental disability extends to all Australian employees by virtue of section 772 FW Act.  

Part 4-2 of the FW Act – Unfair dismissal  

An eligible or ‘protected’ employee also has the option to make an unfair dismissal application to the Fair Work Commission (FWC) if they have been dismissed. The FWC will consider whether there was a valid reason for the dismissal, and whether the employee was afforded procedural fairness. Although being permanently unfit to perform the inherent requirements of a position would generally be a valid reason for termination, the protection provides a forum to test whether that reason was valid, and whether the procedure to effect the dismissal was fair.  

2. Option two – Enterprise Agreement 

Often, an enterprise agreement will have a particular clause about how to handle long-term absence or ill-health retirement.  

It is highly recommended to be aware of the rights contained in the agreement, as the agreement is not only likely to provide for a dispute resolution procedure – which provides an avenue for dispute resolution – but also because failure to comply with an enterprise agreement provides a further cause of action pursuant to section 50 FW Act.  

3. Option three – State and Federal Discrimination Laws 

In addition to the FW Act, all states and territories in Australia have anti-discrimination legislation which prohibit disability discrimination.  

Further, the Commonwealth has anti-discrimination laws with its own Commission to hear complaints.  

Each Act is different, but in general terms provides that a person is not to receive unfavorable treatment due to a disability, and that an employer must be reasonably accommodating for a person’s disability.  

4. Workers’ Compensation Legislation  

For employees on workers’ compensation, it is worthwhile to be aware of your rights under the relevant workers’ compensation legislation in your jurisdiction.  

In addition to the above, an employee with an accepted workers’ compensation claim will in most jurisdictions have access to an ‘obligation period’ or a defined period in which the employer is obligated to provide duties. Often accompanied by a penalty provision, these provisions provide that an injured employee should not be dismissed within that protected period. A summary of these provisions is provided below:  

Deciding which causes of action to pursue is not an easy determination for an employee to make and should be based on legal advice. The choice of jurisdiction will depend on many factors, including what the employee wishes to achieve, their appetite for conflict, how urgent the matter is, the strength of the claim, and the procedures of the relevant tribunal or court.  

This article is information only and is not legal advice. It relates primarily to employees under the Fair Work Act 2009 (Cth). If you are experiencing difficulty at work due to disability, please contact Henry Bournes. Henry Bournes 2026 © Liability limited by a scheme approved under Professional Standards Legislation.