An employee has failed to obtain an injunction against her
dismissal after claiming to have been sacked due to her age and her
absence on sick leave. The employee brought an application for
interim reinstatement in the Federal Court of Australia, but was
refused on the basis that she had failed to demonstrate damages
would not be an adequate remedy. The significantly deteriorated
relationship between employee and employer, the delay in the
employee's application, and the appointment of a replacement,
also played a role in determining the outcome of the case.
However, the Court considered that there remained a serious
dispute as to whether the employer took unlawful adverse action
when it sacked the employee. The Court noted that the timing of the
employee's dismissal (whilst she was absent from work on
medically certified sick leave) raised the serious question as to
whether the dismissal was made for a prohibited reason. The fact
that no justification was given in the termination email supports
the employee's case.
The employer gave evidence that the dismissal was made prior to
the employee's sick leave, based on performance issues and a
worsening relationship with senior executives. If accepted at
trial, the judge deemed this evidence sufficient to negate the
employee's adverse action case.
Lesson for Employers
As always, care needs to be taken when terminating an
employee's employment. While employers are not required to give
a reason for the termination, a lack of a reason (even if only
brief) can create suspicion of a more sinister reason in the
employee's mind. A poorly timed or poorly communicated
termination can lead to a costly court case. The timing of the
termination should be subject to consideration, as temporal
connections to sick leave can impliedly suggest an unlawful
Russell v Institution of Engineers Australia t/a Engineers
Australia (2013) FCA 1250
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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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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