Unfair Dismissal

Daily Archives: September 17, 2019

Got Sacked While Taking Leave

Got Sacked While Taking Leave. Handed a letter, confirmed got dismissed whilst away from the office

Got Sacked While Taking Leave

Got Sacked While Taking Leave, this is not uncommon. The following brief article I hope bring some insight into the situation / issue. If you get sick on holidays can you get sick leave pay and have the holiday pay recredited to you? Interesting question, to say the employer is suspicious of this is putting it mildly.

Top reasons employers dismiss you while your away from work.

  1. Employers don’t want the confrontation
  2. Easier just to send a letter, with no discussion
  3. They found that they could absorb your role, and simply don’t need you anymore. (see this particularly with maternity leave situations)
  4. Employer’s just don’t think in many cases your going to come back anyway.
  5. Co workers, subordinates put the boot into you. Complain to the employer behind your back whilst your way. your not there to defend yourself. The employer simply believes the employees and lets the mob rule, get their way.
  6. Don’t want you back in the office, saying goodbye to everybody, maybe causing trouble.
  7. No chance to take forms, manuals, delete computer files. Get evidence for a potential unfair dismissal claim.

Top reasons employees give when not coming back on their scheduled return to work date

  1. Sorry I missed by flight and its to take days to rebook, the airline is not cooperating
  2. The cars broken down, its going to take a week to get the spare parts here.
  3. My kids / wife’s ill and I can’t just leave them here.
  4. I ill / sick, I’ve emailed you a doctors certificate, I’ll be off for another week / 2 weeks (from Fiji, India this is quite common)
Got Sacked While Taking Leave. You do have rights if your injured or ill in the workplace. Or returning to work

This can end in tears and a dismissal

Employers are not stupid, I’ve seen numerous employees caught out on extending their holidays because of the issue they are sick. The employer says can you give me a copy of the original return ticket. Then i comes out you only booked one way, no return date because you were going to extend or you were not sure when you were returning. Or the return ticket had the latter date, and the employee is caught out. If its genuine its genuine, nothing to worry about other than the employer is very aggrieved and now wants revenge, and dismisses you.

No laws to protect an employee from being fired/dismissed while taking leave?

The surrounding circumstances of Ms Ryan being on personal leave on the day that she was notified of her dismissal could be said to be unfortunate, however it is not a relevant consideration in terms of whether Ms Ryan met the minimum employment period. I do not accept Ms Ryan’s submission that she could not have been dismissed while on personal leave. There is certainly a provision in the Act to render unlawful the termination of an employee due to a short term illness or injury; however that is not the consideration before the Commission at this time.”

Ryan v Stafford City Pharmacy Pty Ltd – [2019] FWC 3615 delivered 5 July 2019 per Hunt C

This case demonstrates you have be to careful about dealing with dismissals relating to away from work. What’s happened in this case, the applicant lodged the wrong claim. She should have lodged a general protections claim, where the qualifying aspects of the claim fall away. I have several articles on the blog that explains the difference in considerable detail. General protections and unfair dismissals, what’s the difference? click here General protections and adverse action click here

Medical-certificate-Dismissed-for-not- having-one
Work with your employer about why your away from work. How your going to return .

Unauthorized absence

If you extend your leave make sure at all times you inform your employer. Avoid a dismissal that’s referred to as “unauthorized absence”. This is when someone does not come to work and gives no reason for their absence or does not contact their employer. This why a record of you informing your employer is important. Email, text messages as to why your away and not return on a due date. I’ve already stated that the employer will already feel inconvienced. is looking for an excuse to dismiss you, don’t give them one.

Other terms people might use include:

  • ‘AWOL’ or absent without leave
  • absent without permission
  • Abandonment of employment

The employer should try to contact the absent employee as soon as possible, including using any emergency contact they have. If contact cannot be made, the employer should discuss the absence with the employee when they come back to work. Make sure you have been afforded this right.

If the employee cannot provide good reason for the absence and lack of contact, the employer might consider dismissal, a warning or investigating further. There is no one rule that dictates this situation, its case by case.

sacked-entitled-to on-centre-link-payments
If your off for extended period of time, you are entitled to access the government support system. If your sacked or dismissed, you can request a separation certificate from your employer. By law they must provide it. If not go to centre link regardless.

If the employee is struggling to attend work

The employer might consider disciplinary action if their employee:

  • keeps taking sick leave or being late (some HR systems have ‘trigger’ points to keep track of attendance records)
  • has unauthorized absences
  • seems to have trouble doing their job
  • not keeping the employer informed.
  • no medical evidence as the absences increase.

Talk you your employer, communicate, why your struggling. If previously you have being doing a good job, hopefully they will give you some leeway. If not ring us, get advice, you do have the option of taking this dispute / mistreatment to the Fair work Commission as general protections not involving dismissal claim, referred to as a F8C application.

Got Sacked While Taking Leave

Gary Pinchen and A Whole New Approach P/L are leaders in workplace commentary, research and advocacy. I have published over some 200 articles. These are not info / advertising blogs. Our goal is to assist, advise employees wherever we can. We are proud of our staff and the outcomes we get for clients. Have a question, want advice, give us a call. 1800 333 666. All claims including abandonment of employment, serious misconduct, probation issues, workers rights and employment rights.

We work in all states, including Victoria, NSW, QLD, WA

How to beat the sack, click here

What is considered sick leave abuse, click here

Sick leave, click here

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