Sacked while on sick leave – compo due

Cases

Sacked while on sick leave – compo due

The Fair Work Commission has ruled a woman was unfairly dismissed while on a month's sick leave. Her employer claimed it didn't renew her contract of employment because she had indicated she could not resume her normal duties.

WantToReadMore

Get unlimited access to all of our content.

The Fair Work Commission has ruled a woman was unfairly dismissed while on a month's sick leave.

Her employer claimed it didn't renew her contract of employment because she had indicated she could not resume her normal duties. It also suggested that, at 77, she was too old to work.

[Full text of this case: K v Embassy of Algeria – Canberra [2016] FWC 4726 (15 July 2016)]

Taking sick leave did not amount to resignation


The woman was employed as a housekeeper at an embassy in Canberra. Her initial contract had been for one year from 26 January 2005. The contract had never been formally renewed but she assumed it had continued as successive one-year contracts.

In 2015, the woman was on limited duties because of an injury to her left arm. From June 2015, she was on leave and had provided a medical certificate stating she was unfit for work until July 2015.

However, she was called to a meeting at work in June 2015 and told her employment was terminated and would not be renewed.

The woman applied to the Fair Work Commission for an unfair dismissal remedy according to s394 of the Fair Work Act 2009.

The employer submitted she had not been dismissed but that her contract had expired at the end of June 2015 and had not been renewed because her injury prevented her from resuming her duties. The employer suggested the woman’s month-long absence on sick leave amounted to one month’s notice to end the employment.

At the hearing before deputy president Kovacic, the woman reported that the employer had told her it would not pay workers compensation for her temporary absence and that, at 77, she was too old to return to work anyway.

She had refused to sign a document stating she did not have any further claim against her employer, upon which one of the embassy officials had asked her, "Do you want to go to gaol?"

Dismissed by employer without valid reason


The commission established the employer had dismissed the woman without a valid reason. She had been notified of the dismissal in June 2015, but had not been given an opportunity to respond to the employer’s decision.

The dismissal had been harsh, unjust and unreasonable considering her age and the length of her unblemished service.

Remedy


The woman did not seek reinstatement, and deputy president Kovacic thought it highly unlikely her trust and confidence in her employer could be restored.

She was likely to have continued in employment until February 2016, which would have been the anniversary of the date when she had signed the original contract of employment.

She would have earned $20,675.28 less tax for that period. However, because of the compensation cap, the commission was only able to award her $15,506.46 in compensation.

K v Embassy of Algeria - Canberra [2016] FWC 4726 (15 July 2016)

Post details