Warning for Calling in Sick, Then a Hint About Your Visa? How a Lawyer Reads That

Here’s a situation that comes up in workplace forums more often than you might expect.

1. An employee wakes up unwell and calls in. 
2. They have a medical certificate. 
3. A few days later, they are given a written warning for the absence. 
4. They push back. 
5. And somewhere in that conversation, the manager mentions the employee’s visa, not as a threat exactly, just as a reminder of how things work.
   
   

No one has been fired or lost anything. So, is there really a legal issue?

There certainly can be. This article is about the part of employment law that sits before any dismissal, and that many people don’t realise they can use.

First, what the law actually asks of you when you’re sick

Most employees are entitled to paid personal leave when they can’t work because of illness or injury. It’s worth mentioning that this doesn’t include ‘casuals’, who are not covered in the same way. The Fair Work Act sets out what you have to do to use it (section 107).

There are two parts.

Notice. You have to tell your employer you’re taking the leave and roughly how long for, as soon as practicable. The Act expressly allows that to be after the leave has started. So a 6 am text when you’re too ill to get out of bed is notice. It doesn’t need to be an official form or a formal email.

Evidence. If your employer asks for it, you have to give evidence that ‘would satisfy a reasonable person‘ that the leave was for a genuine illness or injury. That is the test. It isn’t ‘evidence your manager personally finds convincing’, and it isn’t a special document.

The Fair Work Ombudsman says a medical certificate or a statutory declaration are both examples of acceptable evidence, and that what’s asked for must be reasonable, given the circumstances. Your award or enterprise agreement can have its own rules about this, so it is worth checking your specific contract.

Notice what section 107 does not say. It doesn’t say you have to tell your employer what’s wrong with you. The question is whether the evidence shows you were unfit for work, not what your diagnosis was.

When the boss decides the certificate isn’t good enough

A version of this story comes up surprisingly often. An employee provides a GP’s medical certificate, but their manager rejects it after doing their own online research. In one widely shared example, the manager reportedly used a pollen forecast to decide the employee couldn’t have been that sick.

A lawyer looking at that would ask a simple question: what evidence did the employer have that a reasonable person wouldn’t accept the certificate? A certificate from a registered medical practitioner will usually be the kind of thing a reasonable person accepts. A manager’s own Google search is not medical evidence. The Fair Work Ombudsman has also said it doesn’t consider it reasonable for an employer to ring the employee’s doctor for further information.

That doesn’t mean employers are always wrong to question a medical certificate. They can ask for evidence, and sometimes there are valid reasons to look more closely. But there’s a difference between asking for evidence and deciding you know better than a doctor. Knowing where that line sits can make all the difference when you’re called into a meeting with HR.

‘Can you come in for a chat?’

The next step is often a meeting. It might be called a welfare check, a return-to-work chat or a discussion about attendance.

A few practical points to consider:

• The Act doesn’t give you a general right to bring someone to a workplace meeting like this. However, your award, enterprise agreement or workplace HR policy may allow it. Check what applies to you, and ask if you can bring someone along.
• Ask what the meeting is about, in writing, before you go.
• After it, write down what was said while you remember it, with the date and who was there.

This might seem like a small detail, but it matters. When a dispute comes down to one person’s word against another’s, a note written on the day carries much more weight than a memory recalled six months later.

A warning is not ‘just a warning’

Here is where a lot of people stop. If nobody has been sacked, they assume there’s nothing to complain about.

The general protections part of the Fair Work Act doesn’t work like that. Section 340 says a person must not take adverse action against someone because they have a workplace right, have exercised it, or propose to. Using an entitlement under the National Employment Standards, like personal leave, is a right.

And ‘adverse action’, in section 342, isn’t limited to dismissal. For employer against employee, it also includes injuring the employee in their employment, altering the employee’s position to their prejudice, and discriminating between that employee and others. Whether a warning counts depends on the circumstances, including what it says and what happens next. 

But the law covers more than just ‘being sacked’.

The question that decides these cases is why

Here is what a lawyer will focus on: why did the employer give the warning? This question is essentially the whole fight. 

The employer’s answer will usually be something like: it wasn’t about the sick leave; it was about attendance 或 about not following the procedure. The employee argues that they were warned for taking sick leave.

Section 340 only applies if the employer acted for a prohibited reason. Proving that can be difficult because the reason often comes down to what was in the manager’s head.

That’s where the Act helps. Under section 361, if an employee alleges that an employer took action for a prohibited reason, the employer must prove that it didn’t. In other words, the burden of proof shifts to the employer.

Two limits that need to be considered:

• The employee must establish the basics. They need to show that they had a workplace right and that the employer took action covered by the Act.
• The employee doesn’t automatically win. The employer can still defend the claim by showing that the warning was given for a legitimate, documented reason unrelated to sick leave.

That’s why the details matter:

• The timing: When the warning was issued.
• Consistency: Whether other employees with similar absences were treated the same way.
• The policy: What the workplace rules actually say.
• The conversation: What the manager said during the meeting.

Where the visa comes in

This all brings us to the very thing that made this scenario worth writing about.

When a manager links someone’s visa to a sick-leave dispute, whether as a threat or a ‘just so you know’, it matters for a specific legal reason. It is not that the comment is automatically unlawful by itself. It is evidence about the employer’s reason. 

If the question is Why did you give her a warning?, a manager who has mentioned the employee’s immigration status during the same dispute has made it much harder to say the reason was purely attendance-based.

This matters outside the courtroom, too. Employees on visas may hear a comment like this and feel they have no choice but to stay quiet and sign whatever they’re given. But you don’t have to accept unfair treatment just because you’re on a visa. The law doesn’t require you to simply go along with it.

To be clear, we can’t advise you on how your visa might be affected. For that, speak to a registered migration agent or immigration lawyer as early as possible. We can, however, explain the employment side of things: whether your employer’s actions could amount to adverse action and what options you may have.

What to do this week

• Keep everything. The certificate, the texts you sent to say you were sick, the warning, and any emails.
• Write a timeline today. Dates, who said what, who was in the room.
• Think before you sign anything. A warning often comes with a page that says ‘acknowledged’. Read what it actually says you are acknowledging, and if you disagree, you can say so in writing.
• Reply in writing where you can. Be calm, factual, and make no accusations.
• Don’t assume your visa means you can’t speak up. Get advice on both sides of this. Acting early can make all the difference.

You may also be able to get free help from the Fair Work Ombudsman for questions about your entitlements. We’d encourage you to take advantage of this if you can.

For more information on your workplace rights, see our guides on underpaid wages 和 工作场所欺凌.

You don’t need to have the answer worked out

If something like this has happened to you, you don’t need to be sure it’s unlawful before you ask. That’s what the first conversation is for.

Kingsford Lawyers acts for employees Australia-wide. We’re available seven days a week and can speak with you in more than 12 languages, including Mandarin, Hindi, Punjabi, Italian and Portuguese. 

Book a free chat. No obligation, no pressure.

Phone: 1300 244 342