The Fair Work prohibits adverse action against an employee because they exercise a workplace right, such as taking leave.
A recent decision of the Federal Court found that a diamond retailer, Empress Diamonds Pty Ltd ATF Empress Discretionary Trust (Empress Diamonds), contravened the adverse action provisions of the Fair Work Act 2009 (Cth), when it dismissed an employee with aggressive breast cancer after she informed the business owner that she needed to take leave to recover from surgery.
While Empress Diamonds viewed the employee’s proposed lengthy and indeterminate period of personal and annual leave as ‘inconvenient’ for the business, this decision emphasises that employers more broadly must ensure that any action they take regarding an employee is lawful, irrespective of the employer’s business needs.
Relevant facts
The employee, a sales manager who had worked for the employer for four years, received a diagnosis of breast cancer in April 2019. Her partner phoned the employer on the same day to relay the diagnosis, to which the employer responded with words to the effect of “does that mean she can’t work?” and “I don’t know when she is going to be here and when she is not”.
When the employee spoke to the employer the following day and informed them she may need up to five weeks off work, the employer said “I can’t keep your job”. Several weeks later, the employee informed the employer that she needed to have a significant operation the following week and that she would require several weeks leave. The employee indicated that she had spoken with the business’s accountant, and she had annual leave and personal leave that would cover the period. The employer advised that he had a business to run and that he felt the employee and the accountant were ‘ganging up on him’.
The Federal Court found that at the conclusion of this conversation, the employee had asked the employer whether she was being given the ‘sack’ and this was affirmed, in some way, by the employer.
Both parties signed an Employment Separation Certificate form which stated under the reason for separation as ‘can not keep position because of breast cancer treatment and can not hold job after’. The employer’s daughter then placed an advertisement on Seek for a Sales and Admin Assistant, which significantly, in the Court’s view, made no reference to the position being a temporary role.
The Court accepted that the employer was presented was a situation, without much notice, in which the employee was going to be unavailable for work almost immediately, was not going to be at work for a significant period and there was no indication as what work she could perform when she returned. Based on this, the Court concluded that the employer likely panicked when presented with this information and dismissed the employee from her employment.
Compensation and penalties are yet to be determined.
Lessons for employers
When confronted with managing unwell or incapacitated workers, employers must understand the competing risks and manage these scenarios carefully. Ideally, managers should be well versed in Company procedures as well as the legal protections for ill and injured workers, in order to avoid exposing the business to litigation.
The decision to dismiss an employee should always be for objective reasons, well documented, procedurally fair and does not contravene an employee’s right to take leave or an employee’s workplace right more generally, even where the employer is faced with difficulties and legitimate concerns regarding business continuity.
HR Legal offers training on managing long-term injured workers, please see here for more information.
Tapping v Empress Diamonds Pty Ltd ATF Empress Discretionary Trust [2021] FCCA 1335 (21 June 2021)
