Three months absence does not authorise dismissal – adverse action allowed

By Charles Cody, Principal, MST Lawyers

The Federal Circuit Court recently allowed an employee sacked after being absent with cancer for 10 months to proceed with his adverse action claim, holding a dismissal could still be unlawful even if a sick or injured employee was away for longer than the three months specified in the Fair Work laws.

The employer company told the court that because its former employee was absent for 10 months, his illness wasn’t covered by regulation 3.01 of the Fair Work Regulations 2009, temporary absence due to illness, and it was therefore not prohibited by s352 Fair Work Act 2009 (‘the Act’).  Section 352 of the Act prohibits dismissal because of temporary absence due to illness.  The Act effectively defines temporary absence as being absence for 3 months, or periods totalling 3 months within a 12 month period, other than absence whilst in receipt of worker’s compensation benefits.

The company maintained the termination was authorised under the legislation, and therefore excluded under s342(3) from constituting adverse action.

However, the judge said:

“… the mere fact that action — in this case, relevantly, a dismissal — may be authorised under s.352 of the Fair Work Act and the Regulations does not carry an implication for any claim under s.351.” 

Section 351 of the Act prohibits workplace discrimination.

“A dismissal may be authorised due to the period of absence but it may still constitute an unlawful dismissal under Commonwealth or state anti-discrimination legislation.”

The employee had been absent from work with grade four stomach and liver cancer for 10 months when he was dismissed in July 2013.

He was on unpaid leave at the time, having exhausted his personal leave.

While absent, he had kept his employer informed about his progress, and in June confirmed to his manager by email that he was looking at a possible return to work within two to four weeks.

The company responded with a termination letter.

The judge ruled that the dismissal could be discriminatory on the basis of disability (s15 of the Disability Discrimination Act 1992) and therefore within s351 of the Act.  He encouraged the parties to address the substantive issues in dispute at a further mediation.

Lessons for Employers

Employers should not assume that a long-term illness alone will justify termination of employment.  A request should be made of the employee for a medical report/certificate as to the prognosis, in so far as it may affect the employee’s ability to carry out the employment tasks, and the likely return date.  It may be appropriate, depending on the nature of the illness/injury and the job itself, to request the employee to provide a medical report/certificate as to the ability of the employee to carry out such tasks safely.  If these requests are refused, an employer may be justified in requiring the employee to attend a medical appointment with a medical practitioner appointed by the employer.  Care should be taken that the information sought is necessary, as it could otherwise constitute an invasion on the privacy of the employee or unlawful discrimination.

For further information, please contact our Employment Law and Workplace Safety team by email workplace@mst.com.au or by telephone +61 3 8540 0200.