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Employee diagnosed with cancer and goes on sick
A man was employed by a company on a full-time basis as a
He was diagnosed with stage IV stomach and liver cancer in
August 2012. From that time until his dismissal in July 2013, the
employee remained on sick leave. He was paid sick leave until that
ran out and after that was on unpaid leave.
The employee kept his employer updated of his progress
throughout his period of absence from the workplace.
Employee seeks to return to work and is terminated by
In June 2013 the employee was feeling better and commenced
discussions with his manager about returning to work. On 20 June
2013 the employee sent his manager an email confirming that he was
looking at a possible return to work within two to four weeks.
The company responded by sending the employee a letter which
terminated his employment due to his ten-month period of absence.
The letter explained that during these ten months there had been
extensive changes in the business and the market, and that this
gave the company "no choice" other than to terminate his
The employee brought proceedings against the employer, alleging
discrimination on the basis of disability. The employer rejected
this allegation, claiming that the employee had been lawfully
dismissed under section 352, the "Temporary Illness"
section of the
Fair Work Act.
case a - The case for the employee
case b - The case for the employer
- Due to having cancer, I had a disability as defined by the
Disability Discrimination Act 1992.
- My dismissal in July 2012 amounted to discrimination against me
on the basis of this disability, which is an "adverse
action" under the Fair Work Act.
- Adverse action is not permitted under the General Protection
provisions of the Fair Work Act, which provide that employees are
protected from dismissal if the decision to dismiss is made for a
- Throughout my period of absence from the workplace, I kept my
employer continuously updated about my progress. It was not until I
commenced discussions about returning to work that I was abruptly
- Just because I was absent from work for ten months due to
illness does not exempt my employer from having to abide by
disability discrimination legislation.
- According to the Fair Work Regulations, a temporary illness is
an illness that lasts less than three months or is an ongoing
occurrence where each day of absence adds up to less than three
months over a 12-month period. Where an illness extends beyond that
time, an employer is expressly authorised to dismiss the
- Clearly this was not a temporary illness, so our dismissal of
the employee was not unlawful.
- The General Protection provisions of the Fair Work Act only
apply where the actions taken by an employer are not authorised
under any act of the Commonwealth or states.
- The action we took in dismissing the employee was an authorised
action under the Fair Work Act, which means we did not contravene
the General Protection provisions on the basis of discrimination
due to disability, as the employee claims.
So, which case won?
Cast your judgment below to find out
Vote case A – the case for the employee
Vote case B – the case for the employer
Stacks Collins Thompson
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guide to the subject matter. Specialist advice should be sought
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