Sick leave in Australia is a vital entitlement that supports employee wellbeing — but what happens when you suspect it’s being misused?
Before jumping to conclusions, it’s important to understand your rights and obligations as an employer under the Fair Work Act. Mismanaging the situation could lead to a costly unfair dismissal or general protections claim.
In this blog, we’ll walk you through the right steps to take if you suspect an employee is abusing sick leave in Australia — while staying compliant and protecting your business.
Employer Rights Under Sick Leave Laws in Australia
Under the Fair Work Act, employees are entitled to take paid personal/carer’s leave (commonly known as sick leave) when they are unfit for work due to illness or injury. As an employer, you can:
- Request evidence (like a valid medical certificate)
- Expect the evidence to satisfy a reasonable person
But when absences become frequent or seem suspicious, what should you do next?
Step 1: Identify Concerning Sick Leave Patterns
If the employee is taking repeated short-term absences or is off work for a prolonged period, that may raise red flags. These patterns may warrant a closer look into whether the sick leave is genuine.
Step 2: Have a Genuine Conversation
Meet with the employee to discuss your concerns. Start the conversation with empathy:
“We’ve noticed an increase in your sick leave — is everything okay?”
Sometimes, recurring absenteeism is linked to personal issues, disengagement, or workplace dissatisfaction. This conversation may open a path toward resolution or needed support.
Step 3: Require Medical Certificates Going Forward
If the pattern continues, advise the employee that a medical certificate will now be required for every sick leave day going forward. Make it clear that this is to help the business plan effectively.
If the employee:
- Fails to provide a certificate – Ask why, and document the conversation. Reiterate that ongoing failure to comply may lead to formal performance management.
- Provides a certificate with insufficient detail – Ask for more specific information about their capacity to work and potential workplace adjustments.
Step 4: Get More Detail from Their Doctor
Remember, you have a duty of care to keep the employee safe in the workplace and to ensure their work duties are not exacerbating any condition they may be suffering, so you have the right to request additional evidence. You can either:
- Ask to speak directly with the employee’s doctor (with consent), or
- Provide a letter with questions for the GP, such as:
- How long will the condition last?
- Are any workplace modifications required?
- How long will the condition last?
In more complex cases, you can refer the employee to an independent medical expert. This helps you meet your duty of care and determine if the employee can still fulfill the inherent requirements of their role.
Step 5: Know When Disciplinary Action Is Lawful
Under Australian law, you cannot dismiss an employee simply for taking sick leave — unless they’ve been absent for more than 3 months (either consecutively or over a 12-month period), and are unable to perform their role.
Real Case Example:
An employer was recently ordered to pay over $28,000 in compensation after sacking an employee who allegedly faked being sick — within just six weeks.
The court ruled the process was mishandled.
That’s why it’s critical to tread carefully, follow due process, and avoid acting on assumptions alone.
Final Tips for Employers
- Document every conversation and request for medical evidence
- Be consistent and fair in your approach
- Avoid making decisions based on “gut feelings”
- Always consider workplace health and safety obligations
Remember: Sick leave in Australia is a protected entitlement. Managing it requires balancing business needs with legal compliance and empathy.
Need Expert Help with HR Compliance?
If you’re unsure how to handle an employee taking excessive sick leave in Australia, don’t risk legal missteps.
Book a confidential HR consultation today:
👉 www.hrtactics.com.au/meeting
We’ll help you:
- Create a sick leave policy that protects your business
- Navigate Fair Work compliance
- Avoid unfair dismissal and general protections claims
HR Tactics – HR Consultants Brisbane – Outsourced HR
This information was provided with the intention of helping you find more clarity, confidence and peace of mind as you navigate your own journey as an employer. I would love to hear your thoughts on this, and if you think someone else would enjoy it please feel free to share it on.
If you want some fast and free tips on how to improve the HR processes in your business right now, start with our free little ebook.
If you want to hear more about the various HR solutions HR Tactics provides to the SME market and/or discuss solutions that would be most suited to your unique business, make sure you reach out.
Or ask us a question at our HR Q&A page and receive an answer to your question for free. We’re here to help.
