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Absences from work

Can an employer dismiss an employee for being absent from work? Under the Fair Work Act regulations, it is unlawful for an employer to dismiss an employee for being temporarily absent from work due to temporary illness or injury unless the period of absence exceeds 3 months.

Other unauthorized absences will be potential grounds for an employee’s employment to be terminated depending upon the circumstances. There may be occasions when an employer simply cannot operate a viable business in the face of the absence of employees, either because of the size, nature and industry of the employer or perhaps the critical need for particular employees to be at work.

It must not be forgotten that the employment relationship is almost always underpinned by a contract, whether written, oral or a combination of both. That contract, which every employee has in some form or another, will contain a right by both parties to terminate it without cause, and generally upon notice or pay in lieu. It is that context which may best explain the employer’s right to determine who works in the business, subject to any dismissal being effected with substantive and procedural fairness.

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