Can my employer take away my responsibilities if i am temporarily absent from work?

By Stephen Arulogun

Temporary illness or injury resulting in absence from work is stressful enough. This stress is made worse if your employer is less than understanding and breaches your general protections under Australian industrial relations law by dismissing you because you are temporarily absent from work because of illness or injury. Unfortunately, this occurs all too often in Australian workplaces. Part 3-1 of the Fair Work Act 2009 (General Protections) applies to all employers covered by the Fair Work system (the national system) and provides for the protection against an employer dismissing an employee because the employee is temporarily absent from work because of illness or injury. Additionally, there are protections in place preventing an employer from taking adverse action against an employee (such as “altering an employee’s position”, as discussed below).

Our client – a first-year apprentice pastry chef

The employee was a first-year apprentice baker employed on a full-time basis by a bakery (employer). The employer was covered by the Fair Work system and the employment was covered by the General Retail Industry Award 2020. The employee fell ill and provided a medical certificate from his doctor (as required under section 107 of the Fair Work Act 2009) stating he was unfit for work for a period of 10 days. The employee had accrued sufficient personal leave and annual leave to be paid over the period of his illness. At no time during his personal leave did the employee resign from his position or give any indication that he intended to resign.

Adverse action taken against an employee for temporary sickness

The employee was responsible for opening the bakery each morning he was rostered to work. He was given a set of keys to the premises to enable him to open it for business five mornings per week. The director of the employer opened the premises for business the other two days per week.

One day after providing a medical certificate, the employee received an email of demand for the return of the business keys within 24 hours (despite the fact that the employee was unable to attend the workplace because of his sickness).

The employer then engaged a legal representative to write to the employee. In its letter, the legal representative stated that the employer had formed the view that the employee did not intend to return to work.

The employee had never given an indication that he would not be returning to work. However, it appears this approach had been taken by the employer because the employee had made enquiries about making a general protections application to the Fair Work Commission. This reason is a proscribed reason for taking adverse action against an employee. At this time, the employee engaged IR Advocates to protect his rights in this employment dispute.

Adverse action occurs when the employer alters the position of the employee to the employee’s prejudice

Section 340 of the Fair Work Act 2009 prohibits an employer from taking adverse action against an employee because the employee has a workplace right, exercises (or does not exercise) the workplace right, or proposes to exercise (or proposes to not exercise) the workplace right.

Adverse action against an employee in a workplace context is defined under section 342 of the Fair Work Act 2009 to include:

  • dismissing the employee;
  • injuring the employee in his or her employment;
  • altering the position of the employee to the employee’s prejudice; or
  • discriminating between the employee and other employees.

Altering the position of an employee includes any act that results in ‘legal’ injury to an employee and any adverse effect to (or deterioration of) the advantages enjoyed by an employee.

The Court has found that the following conduct by an employer constitutes adverse action in the form of altering the position of an employee to the employee’s prejudice:

  • issuing a letter of warning to an employee where it had the effect of lessening the employment security of the employee;
  • reducing an employee’s level of responsibility after an occasion where the employee left work early to pick up her son from school; and
  • suspending an employee from duties when the employee “tagged” a forklift that he considered to be unsafe.

In Wilkie v National Storage Operations Pty Ltd, an employee was working at one of her employer’s storage sites as the centre manager. Following an occasion where she had to leave early to pick up her child from school, she was transferred to another site and demoted to the role of the assistant centre manager.

The reduction in the employee’s status and responsibilities was found by the Court to constitute an alteration in her position to her prejudice.

In Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd, the employee was removed from a weekend shift and placed on a weekday afternoon shift after he was temporarily absent from work on a couple of occasions: to care for his family; and to look after his own health. The change to his rostered shifts was found to be an alteration of the employee’s position to his prejudice because the change resulted in a loss of additional annual leave entitlements and the employee had to work longer hours on his weekday shifts than he would have had to on his weekend day shifts.

Dismissal because of temporary illness or injury

The General Protections regime in the Fair Work Act 2009 (under section 352) includes a prohibition whereby an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury “of a kind prescribed by the regulations”.

A prescribed illness exists when a medical certificate is provided by an employee within 24 hours of being absent from work (or within a longer period of time from the employee’s absence as is reasonable in the circumstances).

A statutory declaration may be given instead of a medical certificate by an employee to meet the requirements of a prescribed illness or sickness (under reg 3.01(2) of the Fair Work Regulation 2009).

What are the consequences of dismissing an employee for temporary absence due to illness or injury?

The employee in our case example advised the employer the evening before his rostered shift that he was not well enough to attend work the next day and provided a medical certificate within 24 hours of being absent from the workplace. Despite this, he was dismissed from his employment and the basis for this was either that the employee had been absent from the workplace (because of illness or injury) or because he had a workplace right (the right to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument).

The case of Stevenson v Murdoch is an example of the consequences of dismissing an employee because of temporary absence due to illness or injury. Ms Stevenson was a full-time employee responsible for coordinating the work of the supported and non-supported employees in the Laundromat business of her employer. She was temporarily absent from work due to illness. During Ms Stevenson’s absence on personal leave, her employer insisted that she respond to allegations of misconduct. This occurred despite medical and other evidence as to her inability to respond.

The employer was found to have taken advantage of Ms Stevenson and used her temporary absence from work due to illness in terminating her employment. The Court was satisfied that Ms Stevenson’s employment was terminated at least for a reason that included a proscribed reason (her temporary absence from work because of illness). The employer was ordered to pay Ms Stevenson compensation of 6 months’ remuneration and a pecuniary penalty of $7,500.

Is an employee who is temporarily absent from work because of temporary illness or injury always protected against dismissal?

An employee will not be protected under section 352 of the Fair Work Act 2009 if the employee is not on paid personal/carer’s leave for the duration of the absence and:

  • the employee’s absence extends for more than 3 months; or
  • the total absences of the employee over a period of 12 months add up to a total of more than 3 months (whether based on a single illness or injury or separate illnesses or injuries).

Conciliation conducted by the Fair Work Commission

The Fair Work Commission (FWC) can deal with a General Protections dispute in several ways including by conducting a conciliation (see section 368 of the Fair Work Act 2009). Other ways the FWC may deal with a general protection application include mediation, making a recommendation or expressing an opinion. For example, the FWC may express an opinion that a dispute appears to be in the nature of an unfair dismissal claim rather than a general protections application involving dismissal. The FWC may make a recommendation that an unfair dismissal claim form should be filed (in place of a general protections application).

IR Advocates represented the first-year apprentice at the private conciliation conducted by the FWC where each party was given the opportunity to present their concerns in a non-adversarial format. The conciliation lasted about two hours. In this case, IR Advocates was successful in reaching an outcome that both the first-year apprentice and employer were happy with.

The terms of settlement reached through conciliation are confidential. Each party feels “empowered” because they each play an active part in reaching the agreed outcome. The outcome is one that each party consents to. Each of these advantages are not available where a dispute proceeds to arbitration or court hearing.

Uncertainty is an indispensable part of taking a dispute to arbitration or court.

The employer and employee are required to bear their own costs in relation to a matter before the FWC (see section 611 of the Fair Work Act 2009). However, in some circumstances, costs may be ordered against one of the parties (often unexpectedly). Parties do not face the uncertainty of an adverse cost order in the course of conciliation.

How does IR Advocates protect your rights?

Our fees are scaled to ensure you receive as much of your entitlements and compensation as possible. Our client’s employer sent many unreasonable emails in an attempt to cause our client to incur more fees than was reasonable. Given the delicate nature of the dispute, we were required to spend more time than expected to ensure that our client achieved the outcome he desired. Despite this, we ensured that our fee did not exceed the agreed amount and that we achieved the desired result for our client.

If you need assistance or have any questions about your employment entitlements, contact us today. Stephen Arulogun and his team are well experienced in providing advice and solutions regarding entitlements for employees.