Extended absence from work: When you can be dismissed
]The question of whether an employee can face dismissal after being absent from work for a long period is one we are routinely asked here at A Whole New Approach. Many employees are forced to take long-term leave due to illness or injury. And when you are feeling unwell, the last thing you want to think about is whether you will be dismissed. Extended absence from work: When you can be dismissed, is increasingly relevant in the post pandemic era as employees try to recover both physically and mentally.
The good news is that the Fair Work Act protects Australian workers from dismissal when taking long-term sick leave. However, it’s important to understand that there are limitations to these protections. Let’s delve further into this issue to understand what your rights are.
How long can you be absent without facing dismissal?
All full-time employees are entitled to 10 days of paid sick leave per year. If you haven’t taken all 10 days of sick leave in a single year, you can use the remaining days in later years. If you have exhausted all your paid sick leave, you may then be able to take unpaid sick leave.
The Fair Work Commission recognises that an employee is sometimes unable to work for an extended period due to illness or injury. As such, it offers protections from being dismissed when taking unpaid sick leave.
An employee may be protected from dismissal if they are absent for less than 3 consecutive months or less than a total of three months in the last twelve-month period. The employee must provide evidence of their illness or injury in order to receive protection.
It must be noted that these time limits don’t apply when you are still using your paid sick leave. An employee can’t be dismissed while taking paid sick leave, no matter how long they are absent.
Is dismissal a certainty after three months absence?
The short answer is no. An employee may still be protected from dismissal even after they have been absent for more than three months and have used all their paid sick leave. Other factors can determine whether an employee can be dismissed or not. In addition to Fair Work protections, an employee may also be protected by relevant state and territory workers compensation and rehabilitation laws. Also, an employer must follow proper procedure when dismissing an employee for a long-term absence.
If an employer doesn’t follow the rules, an eligible employee can challenge their dismissal through Fair Work. This includes making:
- An unfair dismissal application if the reason for the dismissal is harsh, unjust or unreasonable.
- A general protections claim if the dismissal was due to another protected reason
- An unlawful termination claim, which is a claim under a state or federal anti-discrimination law.
While an employee can receive compensation from Fair Work if they make a claim under these circumstances, it’s not always a clear-cut process. Other factors can influence if or how they are compensated. Let’s look at a recent unfair dismissal case that can help you understand some of these factors, Peter David Bostock v Austmont Pty Ltd [2022].
33-year employee dismissed after nine-month absence from work
Peter Bostock, a Sydney-based, full-time factory foreman for Austmont Pty Ltd, had been employed by the company since March 1989. But after feeling “unwell” on 22 April 2021, he went on sick leave and never returned to work until his dismissal. Shortly before his dismissal, Mr Bostock had been investigated for an anonymous complaint made against him, but it was found to not be substantiated.
After almost three months absence from work, on 16 July Mr Bostock received written notification from Austmont that he was required to undertake a fitness for duties assessment. His wife responded to the request, replying that there was no requirement for him to take the assessment.
During his absence from work, Mr Bostock made two workers’ compensation claims. One of these was for a hernia he had suffered. The other claim was in relation to mental illness or injury which he claims was caused by Austmont. As part of the latter claim, Mr Bostock underwent a medical examination in October. However, the result of the examination was dismissed by his insurer.
After nine months absence from work, on 10 February 2022 Austmont dismissed Mr Bostock with immediate effect. The company didn’t provide him with a warning and a chance to respond to the reason for his dismissal. He was simply emailed his termination notice.
The employee makes an unfair dismissal claim with the Fair Work Commission
In his unfair dismissal application to Fair Work, Mr Bostock outlined the reasons why he felt his dismissal was unfair. Mr Bostock contended that he had experienced bullying, harassment, ostracization, exclusion and unfair treatment from Austmont. This led to his diagnosis of major depressive disorder – an illness that he continued to suffer at the time of the Fair Work hearing.
Mr Bostock claimed that he wasn’t able to return to work due to this “persisting medical condition.” He said that the condition meant that he was unable to perform the requirements of his job.
In response to these assertions, Austmont argued to the Commission that Mr Bostock was dismissed for a valid reason, namely that he didn’t have the capacity to do his job. And while Austmont accepted Mr Bostock’s diagnosis of major depressive disorder, the company denied that it was the cause of it.
Was there a valid reason for dismissal?
For a dismissal to be valid, it must have been motivated by a valid reason. Namely, one that is sound, defensible or well founded, and not capricious, fanciful, spiteful or prejudiced.
Commissioner Alana Matheson found that Austmont had in fact dismissed Mr Bostock for a valid reason. She said that his own evidence submitted to the Commission supported Austmont’s argument that Mr Bostock wasn’t able to perform the requirements of his role nor return to work.
“I am satisfied that the Respondent had a valid reason for the Applicant’s dismissal. That this decision was sound, defensible and well founded,” said Commissioner Matheson.
Was the dismissal harsh, unjust or unreasonable?
While there was a valid reason for Mr Bostock’s dismissal, this still didn’t mean that the dismissal wasn’t unfair. For a dismissal to be unfair, it must be proved that it was harsh, unjust or unreasonable.
One of the critical reasons that can result in this judgement is if the employer didn’t provide the employee with an opportunity to respond to the reason for their dismissal. That is, before the decision to terminate employment took place. Commissioner Matheson found that Austmont didn’t provide Mr Bostock with the opportunity to respond to the reason for his dismissal.
The company had told Fair work that it didn’t because he couldn’t return to his role. Also, because Mr Bostock and his wife hadn’t responded to its previous correspondence in relation to his fitness for duties assessment. Therefore, no response was necessary
Commissioner Matheson, however, disagreed.
“It may have been the case that providing an opportunity to respond would not have changed the outcome of the decision to dismiss [Mr Bostock], however I consider that the opportunity to respond should have been provided and this weighs in favour of a finding that the dismissal was unfair.”
“… It was an opportunity and courtesy that should have been extended to the [supervisor] in the context of an employee who has almost 33 years of service with [Austmont].”
Commissioner Matheson of the Fair work Commission
Outcome
For this reason that Commissioner Matheson ruled that Mr Bostock had been unfairly dismissed. She ordered Austmont to pay Mr Bostock $470.72 in compensation. On the basis that he would have been employed for a further fortnight. Not a good outcome.
3 important lessons from this unfair dismissal case
We receive a lot of calls from those who have been dismissed after a long absence of work. If you’re in the same boat, it’s critical to understand the realities of taking an unfair dismissal application to the Fair Work Commission.
The aforementioned case teaches us three key lessons in this regard:
You can’t be absent from work for a long period without consequences.
If you are absent from work for more than three months, there’s no certainty that you’ll be dismissed. But there’s also no certainty that you’ll keep your job, either.
As Commissioner Matheson said in the aforementioned case:
“If an absence extends beyond that [3 month] period, it becomes a question of whether there is likely to be a return to duties in the short or medium term. Usually updated medical advice will be important to that consideration. Indeed that medical information could have a bearing on the adequacy of the reason for termination”.
Your employer must give you the opportunity to respond
Prior to the decision to terminate your employment, your employer must notify you of the reason for the dismissal. Give you an opportunity to respond. However, as we saw in the aforementioned case, even if your employer doesn’t provide this opportunity, it doesn’t necessarily mean that your dismissal wasn’t valid.
As we saw by the paltry compensation Mr Bostock received, winning an unfair dismissal claim by virtue of your employer not following proper procedure is often a hollow victory. If the dismissal was still deemed valid, then your compensation will not amount to much in most cases
Don’t represent yourself at an unfair dismissal hearing
It’s not uncommon for employees to represent themselves at their Fair Work hearing. In the aforementioned case, Mr Bostock represented himself and therefore didn’t argue his case as effectively as possible.
If you represent yourself, it’s highly unlikely that you won’t be equipped to navigate the legal nuances of an unfair dismissal claim. And it’s very likely it won’t be successful. It’s therefore highly advised that you seek representation from a legal professional.
Conclusion to Extended absence from work: When you can be dismissed
For the last two decades, A Whole New Approach has helped countless employees gain rightful compensation for being unfairly dismissed. Our team of specialists (we are not lawyers) can simplify the process of making a claim with Fair Work and can ensure your case is argued as effectively as possible. We can help in all Fair work matters, workers rights, casual employment concerns, employment rights, probation period issues, abandonment of employment.
Call us today on 1800 333 666. Free, confidential discussion about your situation and how we can help you seek justice.
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