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Sacked On Sick Leave – Unfair Says Fair Work Commission

Sacked on sick leave – unfair says Fair Work Commission

A South Australian bistro worker sacked while on sick leave has been awarded $2,500 compensation.

The Fair Work Commission found the dismissal was unreasonable because the woman was not given a warning or a chance to improve her performance.

Worker sacked on sick leave

Corina Shears filed an unfair dismissal claim after the Angle Vale Tavern, north of Adelaide sacked her in September last year.

Shears took time off work with “gastro and tonsillitis” when she received a call from manager Josh Callery. 

She told the Commission:

“He rang to advise me he was letting me go due to always being sick and or my child being sick.

“I mentioned to him whenever I was unable to work I always supplied a doctor’s certificate.

“He said we are a small team and I am being a liability.

“He then said to me … I now will have more time to be a mum.”

Employer claims worker still ‘technically employed’

Management from the tavern disputed Shears’ version of events.

They considered her still technically employed, despite her not having a medical clearance to work.

Commissioner Peter Hampton said the “absence of a genuine warning and opportunity to improve Mrs Shears’ work performance and to make a response was unreasonable”.

In addition to being “unfair”, Mr Hampton described the dismissal as “harsh and unjust”.

As a result, he ordered the Angle Vale Tavern to pay Shears $2,509 in lost wages.

Worker made the wrong claim

Miles Heffernan from IR Claims says it’s against the law for a boss to sack a worker when they are on sick leave.

“Sick leave and taking care of your kids is enshrined in workplace law as a workplace right,” he said.

“Employers who try and sack a worker or cut their hours because they’re sick are running into a world of legal trouble.”

However, Mr Heffernan said Shears made the wrong claim after the dismissal.

“She should have made a general protections claim because the employer dismissed her for exercising two workplace rights.

“Workers who are sacked for taking sick leave, and attending to parental responsibilities always have a claim.

“The advantage of making a general protections claim is that they usually result in a much higher payouts.”


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