Terminating an employee in haste can be a recipe for legal
An employee employed between May and August 2010 was dismissed
after she took two days of sick leave, which she was entitled to.
She had informed the directors of the company that she had obtained
a medical certificate, and would provide it when she returned to
work. However, before she could return, she received a letter
terminating her employment.
In the letter, the directors referred to several
performance-based reasons, including an alleged failure to keep the
directors aware of her absence while on sick leave. However,
Federal Magistrate Smith found that the directors failed to
substantiate any of the reasons given for the dismissal, and found
that they were aware she was on sick leave and could produce a
medical certificate upon returning to work.
At the conclusion of the hearing, the company agreed to pay the
former employee one month's salary in lieu of notice (as
provided in her employment contract). The court also found that the
employer was liable for compensation for losses due to unemployment
of the employee, as a result of a contravention of section 352 of
the Fair Work Regulations. That section (generally) prohibits
dismissal of an employee while on sick leave because of prescribed
illness or injury. The court is yet to assess the amount of any
penalty and costs.
Key issues to consider when contemplating termination of
whether the reasoning for the termination is lawful
whether the employee can access the unfair dismissal
the employee's employment contract, especially termination
Kavassilas v Migration Training Australia Pty Ltd  FMCA
Please contact us if we can assist you in any area of employment
law such as:
Misconduct and performance management
Dismissals and redundancies
Unfair dismissal applications
III and injured employees
Claims for employee entitlements
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.
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