The Federal Court has permitted an employee, who was dismissed
after taking 10 months' leave to fight cancer, to proceed in a
claim against his employer for adverse action. The employee was
employed by Enghouse Australia Pty Ltd but after contracting
stomach and liver cancer had gone on leave for 10 months. During
that time, he had exhausted his personal leave and had taken unpaid
leave. At the end of that 10-month period, he promised to return in
two to four weeks. In response, Enghouse dismissed him.
Enghouse Australia argued that the adverse action provisions of
the Fair Work Act 2009 (Cth) did not protect the employee.
Those provisions provide that an employer may not dismiss an
employee who is temporarily absent on account of illness. However,
Judge Driver of the Federal Circuit Court agreed that the duration
of the employee's illness took him outside the protection of
the provision. Nonetheless, Judge Driver recognized that such
action, although authorized by a Commonwealth or State law, could
still constitute discrimination under s 351 of the Fair Work
Act 2009 (Cth). Accordingly, the employee was given leave to
proceed.
Lessons for Employers
The key takeaway from this case is that simply because an action
is not prohibited under certain discrimination legislation does not
mean that it is not prohibited under all relevant discrimination
legislation. Accordingly, employers looking to dismiss employees
who have taken extended sick leave should always seek advice before
dismissing an employee on the basis that the three-month test in
the Fair Work Act has been satisfied.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
