Fair Work Regulations 2009

For section 352 of the Act, this regulation prescribes kinds of illness or injury.

Under section 352 of the Act, 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.

A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

24 hours after the commencement of the absence; or

such longer period as is reasonable in the circumstances.

The Act defines medical certificate in section 12.

A prescribed kind of illness or injury exists if the employee:

is required by the terms of a workplace instrument:

to notify the employer of an absence from work; and

to substantiate the reason for the absence; and

complies with those terms.

A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.

Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.

An illness or injury is not a prescribed kind of illness or injury if:

either:

the employee’s absence extends for more than 3 months; or

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

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.

In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a 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.