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
Post has no trackbacks.

Subscribe to the commun-iT blog RSS

 Recent Posts


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


    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



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

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

    Captcha Image