Home : About Us :commun-iT blog  

commun-iT blog

Employee sacked while on sick leave wins compensation

Wednesday, May 23, 2012
A recent case in the Federal Magistrates Court of Australia (‘the Court’) has found than an employer unfairly dismissed an employee while she was on sick leave.

As the employee’s salary was over the unfair dismissal threshold of $118,100, the employee commenced proceedings under s 352 of the Fair Work Act 2009 (Cth) (‘the Act’). This section prohibits an employer from dismissing an employee for being “temporarily absent from work due to illness or injury” of a type allowed pursuant the Act. An acceptable illness or injury is that which can be proven by evidence, such as a medical certificate.

The employee had fallen ill and had taken sick leave in compliance with the terms of her employment contract and notified the employer that she would be taking a week of sick leave, and would produce a medical certificate at her first available opportunity. Two days into her sick leave, and before she was able to do provide a medical certificate, the employer summarily dismissed her. Among other reasons, the termination letter stated that the employee “had failed” to keep the employer aware of their “absences”.

The employer had also refused to provide one month’s written notice as required in the employment contract, alleging that the employee had engaged in either “serious misconduct or wilful neglect”, or another act capable of allowing termination under the employment contract the action of dismissing the employee was unrelated to the employee’s lawful sick leave, or that the conduct of the employee amounted to valid reasons to summarily terminate her employment. Federal Magistrate Smith said that the employer’s “decision was poorly thought through” and the act of summary dismissal itself was “devoid of objective reasonableness and fairness” to the employee.

The Court ordered the employer be fined $20,000, pay compensation to the employee of more than $37,000 and cover the employee’s legal costs of $57,000.

For advice on sick leave provisions or termination of employment contact Nick Stevens or Liza Isho.

Author: Nick Stevens, Principal, Stevens & Associates Lawyers, an AIIA.biz expert and one of the Panel of Expert Bloggers.

This article provides general information only. It is not legal advice, and is not a substitute for legal advice. Specific advice should be sought to take into account your particular circumstances. Stevens & Associates Lawyers is a boutique industrial relations and employment law firm. It has liability limited by a scheme approved under Professional Standards Legislation.

Trackback Link
http://www.communit.com.au/BlogRetrieve.aspx?BlogID=4468&PostID=296073&A=Trackback
Trackbacks
Post has no trackbacks.

Subscribe to the commun-iT blog RSS

 Recent Posts


Tags

Innovation Australia: AusIndustry employment law Pym's Technology Lawyers Professional Idemnity Survey data superannuation confidentiality clause David Scott PAAS Matthew Karpanen Greg Pearce employee company tax Payment Summaries Advanced Findings natural disaster Michael Blumenstein Tours employers Corporate and Commercial Law Gold Coast ICT Forum IP Australian Business Register small business owners Insurance Free Basic Listing Benefits fines discounted travel individuals restraint of trade clause Compulsory Employer Superannuation Treadstone SAAS termination Maat Solutions Compliance Program Contracting contractual obligations Fair Work Regulations Hotel IT Lawyer ATO AIIA.biz fuel tax credits Fringe Benefit IT Contracts Law Fair Work Australia AIIA Nick Stevens industrial action Tax rates breach of implied terms Falsify personal services income adverse action ICT capability study Government Grants Clerical and Administrative Employees (State) Award selling your business flood insurance Balance Professional Services Software Research and Development Tax, unpaid work enterprise agreement Contractor Alex Bodnar Sham Research and Development Tax Credit distribution agreement copyright Guide Division 7A NES term deposit Stevens and Associates breach of employment contract warranties Independent IT Professionals Travel Mike Pym employment contract withholding rates Consumer Law Australian Information Industry Assocation broker Civil Aviation Regulations open source Confidential information IT capability directory reseller dividends Peta Maloney Queensland State Government Employment Australian Workplace Agreements Panel of Expert Bloggers AUSkey patent ABN ITFGC Information gathering Tax government procurement Agreements Fair Work Ombudsman indemnity Fair Work Commission eServices Win an iPad 2 Capability Study 2011 Research and Development Tax unfair dismissal IAAS IT Forum Gold Coast Peter Nolle fraudulent refunds R&D tax Credit National Employment Standards moral right small business Discounted Deals Greg Tomkins Supply Management Fee tax law underpayment 12 percent director duties PAYG managed services ASIC Software R&D Tax Federal Court of Australia Databases SME employment agreements GST restraint award Financial Planning Living Away from Home Allowance Board of Taxation Procure IT loans Insurance Advisernet Superannuation Guarantee sick leave compliance IT Law leave loading warranty against defects Centennial Financial Services personal income tax www.aiia.biz benchmarking Regulation 90 2020 Fair Work Act

Archive


    Our Expert Bloggers


    Mike Pym

    Mike is an entrepreneur and lawyer who leads two SMEs, one in the IT software industry, and a firm of lawyers specialising in IT law.


    Peta Maloney

    Company and commercial law, shareholder agreements, constitutions, directors’ duties, setting up companies, IT contracts, outsourcing, government procurement and privacy.

     
    Peter Nolle

    Government Grants from start up to export ready


    Alex Bodnar

    General insurance advisory for commercial & industrial risks, 
    Information Technology & Telecommunication exposures. 


    David Scott

    Investments, Superannuation,
    Life Insurance, Income Protection Insurance, Key Person Insurance, Debt Management, Gearing,
    Retirement Planning


    Mike Pym

    IT contracts, government procurement of IT, distribution agreements, outsourcing, contract management & dispute resolution.

     
    Nick Stevens

    Enterprise Agreements,
    Employment Contracts,
    Unfair Dismissal, EEO, 
    Workplace Surveillance & Privacy, OH&S

    Industry Associations

    fitt

    Contact

    Maat Solutions Pty Ltd
    Level 6, 60 Pitt Street
    Sydney NSW Australia

    T: +61 (02) 9247 9459
    F: +61 (02) 9247 9550













    Captcha Image