Australia: Terminate in haste........

Terminating an employee in haste can be a recipe for legal proceedings

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 employment include:

• whether the reasoning for the termination is lawful
• whether the employee can access the unfair dismissal jurisdiction
• the employee's employment contract, especially termination entitlements.

Sources:

Kavassilas v Migration Training Australia Pty Ltd [2012] FMCA 22
Workplace Express

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