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The Facts
Employee diagnosed with cancer and takes sick leave
A man was employed by a company on a full-time basis as a
channel manager.
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 leave. He had 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
employer
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
employment.
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 2013 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
discriminatory reason.
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
dismissed.
The fact that I was absent from work for ten months because I
had cancer 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
employee.
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.
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.
