I was sacked for being ill, says solicitor


I was sacked for being ill, says solicitor

A court has rejected a solicitor's complaint of discrimination, instead finding her dismissal related to conduct and performance issues.


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A solicitor lodged a complaint of employment discrimination under the Australian Human Rights Commission Act 1986 against her employer. The employer, a law firm, applied to have the complaint dismissed as vexatious and lacking in substance, and the Federal Circuit Court agreed, dismissing the complaint because the reasons for terminating her employment were clearly unrelated to grounds of discrimination.

Facts of case

Roxanne McCardle had worked as a solicitor for Saines Lucas Solicitors for about 2.5 years. She claimed she was dismissed because she did not return to work after several days absence despite telling other employees she was too unwell to do so.

Her other claims included:
  • that her job was stressful, involving frequent travel combined with difficulty obtaining overnight accommodation
  • there were “contentious issues” (not explained in detail) between staff in two of the employer’s branch offices, plus hostility by one circuit judge towards the employer’s solicitors
  • during her first year of work she suffered a bacterial infection causing absence from work and an eventual diagnosis of asthma, pneumonia and a heart problem
  • after a partner of the firm retired, there was much “disruption and infighting” in the office and several other employees left, leaving only her and one other employee in one office. This caused her further ill health, including stress-induced memory loss
  • another solicitor wrongly accused her of damaging his car, and was forced to apologise to her
  • during her second and third years of employment, her health problems also included lower back pain, breast lumps and depression
  • while absent from work due to ill health, she received an email that (she claimed) dismissed her.
She claimed that she was dismissed for being ill, did not receive proper notice or severance pay, and was not given time off with pay or support to help her recover and return to work. Her complaint made various allegations of lack of procedural fairness by the employer.
During proceedings, she withdrew her claims for several other forms of financial compensation and only pursued the claim of non-payment of her salary.

Ms McCardle represented herself and the court described her submissions as lacking the objectivity that an affidavit by a separate legal representative would have provided.

The employer counter-claimed as follows:
  • she overstated her seniority in the firm
  • she consistently failed to meet her budget
  • she did not formally notify it of her various health problems, nor provide medical certificates
  • when she was absent from work, it texted her to ask where she was. She did not reply for five days and failed to provide information requested and required for court hearings
  • with supporting documentation, it suspected that she had taken time off work to assist her daughter to set up a new business, and may have been planning to resign anyway
  • nine days after sending the text message, it terminated her employment
Other evidence that came to light included:
  • past complaints to law practising authorities in three states, and disciplinary action against her by two of them
  • she was an undischarged bankrupt
  • the employer had issued an Employment Separation Certificate stating that she had abandoned her employment
  • The Australian Human Rights Commission had terminated a previous complaint made to it.
The employer claimed that its reasons for terminating her employment were unrelated to disability or any other ground of discrimination. Therefore, it claimed that her complaint had no reasonable prospects of success


The court dismissed the employee’s complaint. It found that the reason for terminating her employment was her unexplained sustained absence from work, not discrimination. She had failed to prove her allegations of a stressful work environment and her claims that she told the employer she could not attend work for health reasons. Nor did she provide proof of her various alleged health problems. Further, this lack of communication meant the employer would have been unaware of any health problems that did exist. 
The reasons for terminating her employment were conduct and job performance, not discrimination.

While an order of costs against the employee would have been appropriate, she was an undischarged bankrupt and such an order would have imposed undue hardship in this case.

The bottom line: In cases involving discrimination in employment, an employee must be able to provide at least some evidence of a possible link between a ground of unlawful discrimination and the way he/she was (mis)treated. If not, the employer may succeed in claiming that the complaint was lacking in substance, misconceived or vexatious, and successfully apply to have it dismissed.

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