The Fair Work Ombudsman set out you entitlements under the Fair Work Act
Got Sacked While Taking Leave
Got Sacked While Taking Leave, this is not uncommon. Employees who miss work because of medical aliments might worry about being dismissed from their jobs. For many, this fear may be justified based seeing what happened to other employees who were off work with medical conditions or injuries. Some employers may try to dismiss employees who fall ill or are injured. However, there are both Federal and state laws in place that protect employees who are faced with these situations.
You should familiarize yourself with your rights if you feel you’ve been sacked or dismissed because of a medical problem. 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.
- Employers don’t want the confrontation.
- Easier just to send a letter, with no discussion.
- They found that they could absorb your role, and simply don’t need you anymore. (see this particularly with maternity leave situations)
- Employer’s just don’t think in many cases your going to come back anyway.
- 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.
- The Employer doesn’t want you back in the office, saying goodbye to everybody, maybe causing trouble.
- No chance to take forms, manuals, delete computer files. Or to gather evidence for a potential unfair dismissal claim.
Top reasons employees give when not coming back on their scheduled return to work date
- Sorry I missed by flight and its to take days to rebook, the airline is not cooperating
- The cars broken down, its going to take a week to get the spare parts here.
- My kids / wife’s ill and I can’t just leave them here.
- 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)
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 it 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, 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 Fair work 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 Fair work Commission at this time.”
Ryan v Stafford City Pharmacy Pty Ltd – [2019] FWC 3615 delivered 5 July 2019 per Hunt C
This unfair dismissal 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
If you extend your leave make sure at all times you inform your employer. Avoid a dismissal that’s referred to as “unauthorized absence”. Or the employer thinks or argues that you have abandoned your employment. 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 inconvenienced. 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.
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.
Returning to work after taking extended sick leave
If your workplace has turned rather hostile due to you taking sick leave, (it’s your right) you’re not alone. Although sickness in the workplace is not uncommon, employers and co workers feeling that you have “let the team down”. That they have had to take on your duties while you have been away and thats unfair. The lingering issue is COVID. The strict guidelines in place to reduce transmission of COVID-19 and constant news updates on the spread of the disease, (and others) can make people hyper-aware and even suspicious of their co-workers’ health. So when you reurn to work with a snifle or a cough people want to stay away from you, perhaps bully you. Or in many cases ask you to go home.
The alarming rate of infections this winter could potentially provoke social stigma against anyone perceived to have been in contact with the virus or who shows some of the symptoms even if they are not infected. Stigma is associated with a lack of knowledge about how COVID-19 spreads, a need to blame others. It develops fears about disease and death, increased tension amongst co workers and gossip that spreads rumours and myths. This very stigma can result in people hiding their illness to avoid discrimination and prevent people from seeking health care immediately.
Bullying (F72 stop bullying application to the Fair work Commission) can be described as repeated and unreasonable behaviour directed towards an employee that creates a risk to their health and safety. If your subjected to bullying because you have taken sick leave then give us a call.
The constant exposure to news updates about COVID-19 and other illnesses in the community increases anxiety and can result in hostile working environments. Even if employees are working remotely, if someone has been in isolation due to contracting a virus, their colleagues could very well treat them differently even on virtual platforms. I’ve seen this on a regular basis. Its like some employees think they can get infected though the computer screen. Who hasn’t been sick in their lives, it’s going to happen, its a matter of when. Fairness and courtesy to each other in difficult times is a good thing. None of us want a toxic workplace culture.
Got Sacked While Taking Leave
Gary Pinchen and A Whole New Approach P/L are leaders in workplace commentary, research and advocacy. (we are not lawyers) I have published over some 400 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 Fair work Commission claims including abandonment of employment, serious misconduct, probation issues, workers rights and employment rights.
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