A recent case has seen a business subject to penalties for adverse action taken against an employee for taking sick leave, but in a significant decision, it has also resulted in discrimination penalties when the court found that the employees chest infection also counted as a temporary disability.  This case will have implications for all businesses when it comes to appropriate management of leave issues.

Case Recap

In this case a junior worker called into work sick.  The Director of the business told the employee to come to work anyway and when the employee refused the Director removed him from the company Facebook group and sent a message to the group that the employee “no longer be working for us” and  “if I haven’t been clear enough already, there is a zero tolerance for not showing up to your shift. Not showing up to work simply is a act of defiance and disrespect towards your co-workers and throws the whole store under bus, this I can’t not allow at my store”.

The employee subsequently lodged a adverse action claim stating that the business had breached his right to time off work when ill without loss of employment or status (s352 Fair Work Act – Temporary absence due to illness).

“To this point this case is pretty standard actually.  The employee has a right to be home from work when unwell and to not have fear of loosing their job, or as in this case actually loosing their job, due to taking that time.  It is a pretty clear cut case of adverse action.  Where the employees employment was adversely impacted because they had or asserted a protected employment right”, explains ACAPMAs Elisha Radwanowski.

“Like any adverse action the court has the option of finding for penalties, lost wages and even compensation for pain and suffering.  It is this last option that makes an adverse action claim very different to the more common unfair dismissal claim”, continues Elisha.

“So because this was an adverse action claim the court could have awarded monies for pain and suffering as it saw fit, but in this case it has gone one step further, adding discrimination into the mix”, added Elisha.

The court also found that the employees illness could also be considered a disability under s351 of the Fair Work Act.

“Its this additional construction of the same conduct, that is the adverse action taken against the employee for taking a temporary absence due to illness, as also being a breach of discrimination provisions that makes this case interesting”, explains Elisha.

“The stacking of the breaches in this way led to higher penalties against the business and higher findings for the employee of monies for pain and suffering, but it also means any illness must be considered a disability”, continues Elisha.

The court awarded the junior employee 6 weeks wages for economic loss ($1,200) and $6,000 in compensation for pain and suffering.

Learnings for all businesses

“It is vital that businesses understand that employees get sick, and taking time off, even if the employee is not receiving payment for that time off, is a right and the business cannot simply terminate an employee for a temporary absence due to illness”, outlines Elisha.

“In addition businesses should be on notice that should the fail to respond compliantly in this area they could be facing not only adverse action claims, but also discrimination claims”, concluded Elisha.

Here to Help

This article is general in nature and covers things to consider, implement and watch out for in your business. It is provided as general advice and you should seek further advice on your situation.  ACAPMA Employment Professionals are available to assist ACAPMA members via employment@acapma.com.au.

ACAPMA membership is affordable at only $860inc GST per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts.  Visit: https://acapma.com.au/membership/   to learn more or to apply for ACAPMA membership.

Elisha Radwanowski BCom(HRM & IR)
Executive Manager for Employment and Training