Not because of the absence itself, if you give evidence. Your employer cannot dismiss you for a temporary illness for as long as paid sick leave covers the absence, or while your time off is 3 months or less, counting every sick absence in the last 12 months.
Australian law sets no number of sick days that counts as too many. What it sets is a protection with two conditions: you must back the illness with evidence, and the protection runs out only when you have been away for more than 3 months and your paid sick leave is gone. This guide turns that rule into dates, using four employees and the 2026-27 NSW public holiday calendar, then covers what still protects you after the date passes.
Key takeaways
- Section 352 bars dismissal because you are temporarily absent with an illness or injury of a prescribed kind. It is a civil remedy provision, and s 772 makes the same ground an unlawful termination reason.
- The illness is "prescribed" if you give a medical certificate or statutory declaration within 24 hours, follow your award's notify-and-substantiate terms, or give evidence for paid sick leave (reg 3.01).
- The protection ends only when both limbs are met: more than 3 months away (in one stretch, or in total within 12 months) and not on paid sick leave for the whole absence.
- Your sick leave balance is what stretches the protection. With 760 hours banked, a full-time employee off from 2 November 2026 stays protected to 25 March 2027.
- After the protection lapses, a dismissal must still be fair. An unfair dismissal claim has to be lodged within 21 days.
How long you are protected: four sets of dates
Each example assumes the employee gave evidence that meets one of the three routes in the next section. The first three people are full-time on 38 hours a week, 7.6 hours a day, Monday to Friday, in NSW. Paid days skip public holidays, because a public holiday during paid sick leave is paid but not taken from the balance.
| Employee | Facts | Paid sick leave runs out | 3-month mark (about) | Protected until |
|---|---|---|---|---|
| Tom | 114 hours banked. Back injury from Monday 2 November 2026; GP certificate emailed on day 1 | Friday 20 November 2026 (114 / 7.6 = 15 working days) | Tuesday 2 February 2027 | About 2 February 2027, the later date |
| Lee | 760 hours banked. Cancer treatment from Monday 2 November 2026; certificates throughout | Thursday 25 March 2027 (760 / 7.6 = 100 working days, skipping 4 public holidays) | Tuesday 2 February 2027 | 25 March 2027: on paid leave the whole time, so the 3-month mark does not end it |
| Kim | Off 42 days after surgery (4 May 2026 to 14 June 2026), which used up her sick leave. Off again from Monday 2 November 2026 with 0 hours left | Already run out | Monday 21 December 2026, because the earlier 42 days count towards the 3 months | About 21 December 2026 |
| Jo | Part-time. 9 single Mondays off over 6 months, each with a certificate | Not reached | 9 days in total, nowhere near 3 months | Protected for every absence |
Lee's 100 days skip 25 December 2026, 28 December 2026, 1 January 2027 and 26 January 2027, all NSW public holidays on her working days. Tom's 3 weeks of paid leave end long before the 3-month mark, so if he is still away, that mark is the one that matters for him. Kim shows the rule people miss: separate illnesses in the same 12 months add together, so her limit arrives about 6 weeks earlier than Tom's.
These dates count a single absence as 3 calendar months and a running total as 91 days. The regulation does not say how the months are counted, so treat the marks as estimates and get advice if your dates are close. Once a date passes, the s 352 protection no longer applies, but a dismissal must still be fair, as the later sections explain.
Fair Work Ombudsman, Not working on public holidays (updated 10 August 2026): "If a public holiday falls during a period of paid leave (for example, annual leave or sick leave), the employee has to be paid for the public holiday." "The public holiday isn't counted as annual leave or sick leave under the NES." "An employee isn't paid for any public holiday that falls during a time when the employee is on unpaid leave." Retrieved 7 October 2026. Dates: NSW public holidays 2026 and 2027.
Your balance in hours divided by your weekly ordinary hours is the number of weeks you can be off fully paid and fully protected. Accrued sick days works out the balance and those weeks from your start date.
The rule: section 352 and regulation 3.01
Section 352 is one sentence: an employer must not dismiss an employee because the employee is temporarily absent from work because of an illness or injury of a kind prescribed by the regulations. Section 772(1)(a) lists the same ground among the reasons for which termination is unlawful. Everything else comes from regulation 3.01, which decides when an illness is "prescribed".
The three ways to prove the illness
| Route | What you need | Regulation |
|---|---|---|
| Certificate or stat dec | A medical certificate or stat dec given no later than 24 hours into the absence, or within a longer reasonable period | 3.01(2) |
| Your award or agreement | Your workplace instrument requires you to notify the absence and substantiate the reason, and you do both | 3.01(3) |
| Evidence for paid sick leave | You gave evidence under s 107(3)(a) for paid personal/carer's leave for your illness or injury | 3.01(4) |
One route is enough. What makes a certificate valid, including telehealth and backdating, is covered in doctor's certificate for sick leave.
The 3-month limit, and why paid sick leave extends it
Regulation 3.01(5) removes the protection only when two things are true at once:
| Time away | On paid sick leave for the whole absence? | Protected? |
|---|---|---|
| 3 months or less, in one stretch and in total over 12 months | Either | Yes |
| More than 3 months | Yes | Yes, however long it lasts |
| More than 3 months | No: the balance ran out, or there never was one | No, the s 352 protection ends |
Paid leave "however described" counts, so a paid personal leave scheme under an agreement works the same way. If you have no paid sick leave at all, as casual employees do not, the 3-month mark is the outer limit: see do casuals get sick leave.
Workers' compensation periods
Time off while you receive workers' compensation is not paid personal/carer's leave for this test, so it cannot extend the protection the way a sick leave balance does. The Fair Work Ombudsman notes that state and territory workers' compensation laws may protect you separately. For stress claims and workers' compensation by state, see stress leave in NSW, stress leave in Victoria and stress leave in QLD.
s 352: "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." (AustLII.) reg 3.01(5): "An illness or injury is not a prescribed kind of illness or injury if: (a) either: (i) the employee's absence extends for more than 3 months; or (ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and (b) the employee is not on paid personal/carer's leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence." reg 3.01(6) excludes any period "when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers' compensation." (AustLII.) Fair Work Ombudsman, Long periods of sick leave (updated 10 August 2026): "Employees who use paid sick leave the whole time can't be dismissed by their employer because of their absence, regardless of how long they're on leave." All retrieved 7 October 2026.
What counts as "excessive" sick leave
Nothing in the Fair Work Act or the regulations. There is no annual cap on how much accrued sick leave you can use, and the Fair Work Ombudsman says there is no minimum or maximum amount of paid sick leave per period of leave. A full-time employee accrues 10 days a year (76 hours, or 1/26 of ordinary hours), and the balance carries over, so several years of unused leave can fund a long absence.
The only numbers in the rules are the 3 months in reg 3.01(5), and they bite only once paid leave has run out. Using up a balance you have built is not excessive in law. Being unable to prove the illness when properly asked is a different problem, covered next.
What your employer can do about frequent absences
Your employer's main lever is evidence. It can ask for evidence for every absence, even one of a single day or less, as long as what it asks for is reasonable in the circumstances. Fail to provide it when asked and the day may go unpaid; s 107(4) also removes the entitlement to the leave.
How often you are away does not change the s 352 protection. Jo's 9 Mondays above are each protected because each comes with a certificate. The protection turns on the evidence routes and the 3-month limit, not on a pattern. Paid sick leave is for days you cannot work because of illness or injury, so the real risk for an employee with frequent absences is a day without evidence, not the number of days.
For the full list of what your employer can and cannot demand, see sick leave evidence.
Fair Work Ombudsman, Notice and medical certificates (updated 10 August 2026): "Employers can ask employees to provide evidence for as little as 1 day or less off work." "An employee who doesn't give their employer evidence when asked may not be entitled to be paid for their sick or carer's leave." "The type of evidence requested must always be reasonable in the circumstances." Fair Work Act 2009 s 107(4): "An employee is not entitled to take leave under this Division unless the employee complies with this section." Retrieved 7 October 2026.
If you are dismissed after the protection ends
Passing the 3-month mark with no paid leave left removes one protection, not all of them. If you can bring an unfair dismissal claim, the Fair Work Commission weighs the factors in s 387, including:
- whether there was a valid reason related to your capacity or conduct;
- whether you were told the reason and given a chance to respond;
- any unreasonable refusal to let you have a support person in discussions about the dismissal;
- for unsatisfactory performance, whether you were warned first.
Section 772 adds a separate ground: termination for reasons including physical or mental disability is unlawful, unless the reason is based on the inherent requirements of the particular job. State and federal anti-discrimination laws can apply as well.
Fair Work Act 2009 s 387: the Commission must take into account "(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct ...; (b) whether the person was notified of that reason; (c) whether the person was given an opportunity to respond". s 772(2): the disability ground does not prevent termination where "the reason is based on the inherent requirements of the particular position concerned". Retrieved 7 October 2026.
How to challenge a dismissal
The Fair Work Ombudsman lists four ways to challenge a dismissal linked to illness or injury: an unfair dismissal application, a general protections claim, an unlawful termination claim, or a claim under state or federal anti-discrimination law. For unfair dismissal, these are the conditions:
| Condition | Requirement |
|---|---|
| Length of service | 6 months minimum; 12 months if the employer has fewer than 15 employees (a small business) |
| Coverage or pay | Covered by an award or enterprise agreement, or earning less than the high income threshold |
| High income threshold | $190,100 for dismissals from 1 July 2026; $183,100 for dismissals that took effect on or before 30 June 2026 |
| Deadline | 21 days after the dismissal |
The 21 days run from the dismissal, so do not wait until you are well to act. If the dismissal was presented as a redundancy, the separate test in genuine redundancy applies.
Fair Work Ombudsman, Unfair dismissal (updated 25 June 2026): "you need to apply to the Commission within 21 days of your dismissal." "A small business is defined as any business with fewer than 15 employees." Fair Work Commission, High income threshold (updated 1 July 2026): "The high income threshold is currently $190,100." "For a dismissal which took effect on or before 30 June 2026 the high income threshold was $183,100." Fair Work Ombudsman, Long periods of sick leave for the four ways to challenge. Retrieved 7 October 2026.
Fired for too many sick days: questions
Can you be fired for taking too many sick days in Australia?
Not because of a temporary absence through illness or injury, as long as you give evidence that meets reg 3.01. The protection holds for the whole of any paid sick leave, and for any absence of 3 months or less.
What is considered excessive sick leave?
There is no legal definition. Full-time employees accrue 10 days a year and can use all they have banked. The only number in the rules is the 3-month limit, which applies once paid leave has run out.
Can you be fired while on sick leave?
No, not for the absence, for as long as paid sick leave covers it. Section 352 is about dismissal because of the absence. A dismissal for some other reason is judged by the usual tests, including whether it was fair.
How long can you be off sick before you can be dismissed?
The s 352 protection lapses only after more than 3 months away, in one stretch or in total over 12 months, and only once your paid sick leave has run out. With a large balance, that can be long after the 3-month mark, as Lee's dates show.
Do I need a medical certificate to be protected?
You need one of three things: a medical certificate or statutory declaration within 24 hours (or a longer reasonable period), the evidence your award or agreement requires, or evidence you gave for paid sick leave.
Does time on workers' compensation count?
Not as paid sick leave for this test, so it does not extend the protection. State and territory workers' compensation laws may give separate protection.
What can my employer do if I keep taking single days off?
Ask for evidence every time, even for one day. A day you cannot support with evidence when asked may be unpaid, and you are not entitled to the leave for it.
What is considered sick leave abuse?
The Fair Work Act does not define it. Paid sick leave is for days you cannot work because of illness or injury, so a day off while well is outside the entitlement.
Can you be made redundant while on sick leave?
Section 352 is about dismissal because of your absence. Whether a redundancy is real is a separate question with its own tests, set out in genuine redundancy.
How long do I have to challenge a dismissal?
An unfair dismissal application must reach the Fair Work Commission within 21 days of the dismissal.
Fair Work Act 2009 (Cth) s 352, s 107, s 387, s 772; Fair Work Regulations 2009 reg 3.01 (AustLII consolidations). Fair Work Ombudsman: Long periods of sick leave; Paid sick and carer's leave; Notice and medical certificates; Not working on public holidays; Unfair dismissal. Fair Work Commission, High income threshold.
Author & reviewer
Sarah has spent over a decade advising Australian SMBs on Fair Work, NES compliance, and payroll. Based in Sydney, she has worked across hospitality, retail and professional services.