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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 who was sacked while on sick leave has been awarded $2,500 compensation.

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

The details

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

Ms Shears had been off work with “gastro and tonsillitis” when she received a phone call from her manager Josh Callery.

“He rang to advise me he was letting me go due to always being sick and or my child being sick,” Ms Shears told the Fair Work Commission.

“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 was still ‘technically employed’

Management from the tavern disputed Ms Shears’ version of events, claiming she was still technically employed, but had not yet provided a medical clearance to work.

Fair Work Commissioner Peter Hampton said even taking into account the employer’s circumstances, 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 said he was satisfied the dismissal was also “harsh and unjust”, and ordered the Angle Vale Tavern to pay Ms Shears $2,509 in lost wages.

Worker made the wrong claim

Miles Heffernan, Litigation Director at Industrial Relations Claims, said 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.”

Mr Heffernan said Ms Shears should have made a general protections claim involving dismissal, instead of an unfair dismissal claim.

“She was eligible to make a general protections claim because she was sacked for exercising two workplace rights – which were taking sick leave, and attending to her parental responsibilities,” he said.

“The advantage of making a general protections claim is that they usually result in a much higher payouts – the worker is not only awarded money for lost wages, but they can also claim compensation for shock and distress.

“In addition, the employer can be hit with pecuniary penalties which are uncapped.”

Mr Heffernan advised anyone who thinks they have been unfairly dismissed to seek urgent expert advice.

“As this case highlights, choosing the right claim and the right jurisdiction is vitally important, because it can mean a big difference to your bank balance at the end of the day,” he said.

Workers who have been unfairly dismissed from employment have just 21 days from the date of their dismissal to file a claim.

“Don’t delay and give us a call straight away, because if you miss the deadline, you forever lose the chance of compensation, or possibly even the chance of getting your job back,” Mr Heffernan said.

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If you have been unfairly dismissed from employment, you may be entitled to compensation.

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