One of the biggest issues for an employer is dealing with
underperforming staff members who abuse their sick leave
entitlements or access their sick leave for a stress claim
immediately ensuing a disciplinary meeting.
Whilst an employer is not to be prevented from terminating an
employee whilst on sick leave if the termination is attributed to
performance-based or other lawful reasons, it leaves the employer
exposed to a claim. In the event that an employee then lodges a
general protections (unlawful termination) claim the onus will be
on the employer to prove that the dismissal was not associated with
the employee taking sick leave (or other unlawful reasons).
What often happens is that an employer sees an underperforming
employee and, whilst frustrated does not take disciplinary action
against them because of challenging demands of operating the
business. The employee will then take their fourth instalment of
sick leave at an inconvenient time, which drives the employer to
distraction feeling that they are being taken advantage of, they
move rapidly (often too rapidly) to dismiss them.
The case of Kavassilas v Migration Training Australia Pty
Ltd  FMCA 22, was a good example of this. Kavassilas
('the applicant') was dismissed by her employer, Migration
Training Australia ('MTA'), after taking two days of sick
leave (which she was entitled to under her contract). The applicant
informed MTA that she would provide a medical certificate upon
returning to work. However before she returned to work, she
received a letter from MTA terminating her employment.
The letter attributed her dismissal to several performance
Failure to carry out her duties in a satisfactory manner
Disrupting the activities of the company, resulting in the loss
Harassment and bullying of fellow staff members
Failure to diligently and consistently apply herself to the
discharge of her duties
Failure to keep the directors of the group of companies aware
of her absences from work
However under cross-examination, the evidence given by MTA's
directors was highly contradictory and did not justify any of the
above reasons. MTA's directors also acknowledged that they had
knowledge that the applicant was on sick leave and was going to
produce a medical certificate upon return.
Federal Magistrate Smith was of the belief that the true reasons
for termination were "impulsive and irrational" and that
her dismissal was "triggered by her absence from
FWA found that the termination of the applicant contravened s352
of the Fair Work Act, which protects employees from
dismissal whilst on sick leave because of illness or injuries
prescribed by the Fair Work Regulations.
It was also noted that MTA may have held an incorrect view that
an employee can could be terminated whilst absent on sick leave at
any time until a medical certificate was actually submitted.
Although the regulations require that a medical certificate be
produced within 24 hours of the start of the leave, an employee may
take a longer period of time provided it is "reasonable in
the circumstances". This reaffirms the intent of the
Fair Work Act on protecting employees against dismissal in
relation to an employee's exercise of rights to take sick
What does this mean for employers? It means that employers must
take extreme caution when dismissing employees who are currently
taking sick leave. If an employer is found to have contravened
s352, they will be liable for the payment of wages and
There is also a presumption that if an employee has been
dismissed whilst taking sick leave, the dismissal was undertaken
due to the fact that the employee was on sick leave. In disproving
this presumption, employers must have clear evidence showing that
the dismissal was not connected to the employee taking leave, and
that there was no unlawful motivation for the dismissal. The
authorities to this point highlight that proving that someone was
not entitled to take sick leave verges on the impossible.
It is our view that disciplinary processes should never touch on
issues of absenteeism, as the law is weighed against so heavily
against the employer on this issue there is often a connection
between absenteeism and poor performance. We strongly recommend
that employers focus on the poor performance and make sure that all
such disciplinary meetings are followed up by a warning memo or
The commissioner found that the worker was fit to return to his work as a driver, as recommended by the medical evidence.
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