Unlawful Dismissal / Termination

My husband joined a insurance company 3 Dec 2018 and his employment was terminated on 29 Apr 2019 stating the reason that he was not reliable as he had taken more than 4 weeks of sick leave, all the leave which he had taken was sick leave and was supported with medical certificate (s).

During his whole tenure he was never given verbal or written warning in terms of quality of his work or performance at work.

He has filed claim under general protections - as he is covered under s.351 and s.352

The employer has responded and refuted to reinstate my husband in his job reason(s) being -

Attending job was a inherent requirement of the job and since he was away for long the requirement was not fulfilled hence no claim under 351

Our understanding is - the reason provided in unfair as a person when he or she is ill and has produced doctor's certificate then employer should have been more considerate of the situation

As my husband had taken some part of his leave as unpaid leave s.352 is not applicable as well.

Our understanding is - he was getting only 10 paid leaves for whole year of work on pro rated basis, if he was sick for more than what he had accrued then there was no other way to apply for unpaid leave as advised by his manager.

Workplace advisory service is high in demand and they can only speak to us after 2 weeks.

We are seeking legal advice and till the time we get a lawyer who is in our budget or can provide pro bono advice - reaching out to forum to seek if there is anything which we should be /shouldn't be doing and anyone who cares to share their experience in such situation.

closed Comments

  • +36 votes

    was he under probation? If so, you have absolutely zero ground to stand on

    Also, he was pushing the envelope taking 4 weeks of sickies in the space of 5 months

    • +29 votes

      Not sure how taking any number of required sick days is 'pushing the envelope'. Just tough out that chemo, dude!

    • +4 votes

      spot on

      if he was under the 6 month probation
      they dont need to give any reason other than he was not suited for the role

      if he was on a 3 month probation and then passed its a different story

      • +3 votes

        Unfair dismissal versus unlawful dismissal. No qualifying period for unlawful dismissal (like if you were fired for being pregnant… Or perhaps if you took leave and had a medical certificate)

        • +1 vote

          This is mostly correct (and more compassionate than some who have responded), though Unlawful Terminations (which relate primarily to s.772 of the Fair Work Act ('the Act')) only apply to individuals who cannot make a General Protections Claim (which if the adverse action is dismissal relates primarily to s.340 to s.352 of the Act) (see s.723 of the Fair Work Act ).

          Employees who would usually need to make an unlawful termination rather than general protections claim would generally be state and local government employees in some (but not all) states and employees of non-constitutional corporations in Western Australia.

          Sorry HW if this is a bit pedantic. These claims are similar, though people are sometimes caught out and make the wrong claim, so I thought I'd reply to your message.

          Either way the minimum employment period set out at s.383 of the Act does not apply when the dismissal is for a proscribed reason, including due to a temporary absence due to illness or injury.

    •  

      Apparently over 4 weeks.

      I feel for the guy being genuinely sick over that period of time, but I find it strange that he'd be surprised on being terminated. If I was taking that much sick leave I'd be making sure that I talk to the bosses all the time to make sure they understand why I've been off, and if this is OK by them. I would be making sure that I know what the expectations are and what is coming.

      I had a friend that was taking lots of sick leave immediately after being hired by a firm so he could continue looking for other jobs as he realized that the job he had walked into was the wrong one for him and they had management issues. He was probably off work 1 in every 4 days. Work was a bit miffed by this and put the hard word on him a little, but then he found a job and told them he was leaving and they were backflipping everywhere trying to make him stay because when he was at work, he was doing a great job (even though they were constantly on him about not being at work!)

      Employment is a funny game.

  • +17 votes

    This thread wont help you very much.

    Please call Legal Aid VIC for a free consult over the phone.

    https://www.legalaid.vic.gov.au/get-legal-services-and-advic...

    •  

      Had looked at their website , it seems they dont deal with employment law area.

      • +5 votes

        Hopefully you read this bit:

        https://www.legalaid.vic.gov.au/find-legal-answers/employmen...

        How to apply
        You have 21 days from the termination of your employment to apply to the Fair Work Commission to make a claim for general protections dispute.

        For information about how to make an application and how much this costs go to the Fair Work Commission website.

        The Fair Work Commission will set up a conference with your employer to try to resolve the dispute. If the dismissal is not resolved the Fair Work Commission must issue a certificate.

        You can then make an application to a court to deal with the matter. This must occur within 14 days of the certificate being issued.

  • +24 votes

    I would suggest talking to his union as a first step. This is literally why unions exist.
    While well intentioned, a web forum is no substitute for experienced advice.
    My second suggestion is to consider what outcome you are seeking.
    Your husband has no accrued benefits to protect, if he in reinstated it will be an unpleasant work atmosphere, and any piddling compensation you receive will not be worth the stress and effort of pursuing it.

    • +12 votes

      I would suggest talking to his union as a first step.

      Most people I've ever worked with were not part of a union.

      • +7 votes

        Most people I have worked with are part of a union.

        It all depends on the industry.

        •  

          Unions are like religion, they try and get you in whilst you are young and vulnerable then you give them money and get?

          • +14 votes

            @Fincky: Negotiations on your behalf for fair pay rises and help in circumstances such as this

          • +4 votes

            @Fincky: I wasn't a big believer in unions, but my brother (teacher in SA) is a member of the union there and has told me about the numerous positive things that have been done (pay rises, extra pay levels, plus many smaller things that really add up).

            • +3 votes

              @mikeoz: This is my experience too. Long time and still LNP voter but 10 years ago I had a career change and became part of a union. Nice to have support of people who fight for you.

              I even became my work’s union rep, which confirmed that management are b@$tards and that the workers need help to, 1. maintain entitlements and 2. to help them be enforced.

              • +2 votes

                @Crawfish: Whelp the LNP will help get rid of the unions soon, they have been progressively doing it for decades, so you can kiss your entitlements goodbye.

          • +1 vote

            @Fincky: It depends where you work.

            My Union has negotiated to keep our conditions. We recently had a 2 year EBA negotiation that would have stripped many things from us including halving our sick leave entitlement and having to work additional hours without compensation plus a weeks less annual leave for some employees.
            They've got pay rises for us (including non-union members). My pay has gone up faster than the inflation rate in the past 2 years. Not many have got that these days.
            They've represented me as an individual several times and offered support and advice.

            They've done the same for my fellow workers.

            I don't like confrontation and I'm happy to pay someone else to call my bosses a pack of bastards.

      • +10 votes

        surprised you work with the amount of unnecessary comments you put on OzBargain…

    •  

      I would suggest talking to his union as a first step. This is literally why unions exist.

      Many fields don't have unions. For example, IT has no union that has the ability to defend their workers. I have no idea why. This is coming from somebody that owns an IT business.

  • +9 votes

    If he was still on probation then you're wasting your time, that's the whole point of a probation period.

    • +10 votes

      that's the whole point of a probation period.

      Not really… It's meant to be to see if the person is competent to perform their role, not to see how sick they get.

      • +3 votes

        That's one of the factors that is assessed during a trial period but by no means the only one, it's almost more important nowadays to be a good cultural fit than anything else.

      • +2 votes

        and yet JV you write this just 2 minutes later

        How is the business supposed to be viable if their employees are not turning up for work?

        They probably had to hire somebody else to get the work done.

        So what is it, is it meant to be to see if the person is competent to perform their role rather than to see if they turn up for work?

      •  

        I think OP might have been struggling in the role. I would be too if I was not at work ~20% of the time.

  • +37 votes

    How is the business supposed to be viable if their employees are not turning up for work?

    They probably had to hire somebody else to get the work done.

    • +13 votes

      I think jv's account is hacked, someone logged in and gave good advices. Please return the normal jv with useless comments!

  • +22 votes

    Employer is not welfare.

    It is unfortunate your husband has been sick a lot. 4 weeks out of 5 months of employment (during the period where there is already fewer business days) is a significant portion.

    You can't expect an employer to hold a job for someone who is new and untested in the hopes their health improves.

  • +15 votes

    My husband joined a insurance company

    Did he take out employment insurance ?

  • +7 votes

    Tbf, 4 weeks of sick leave in the first 5 months leads to the assumption where its going to keep happening if hes not in the best of health. How would it be fair to the company / other employees who have to cover for him when hes sick?

    • +1 vote

      Once he returned back , he did submit fit to work and also offered for any medical checkups , the company wants him to undergo.
      HR just refused .

      •  

        The "fit for work" and any other checkups are not worth the paper it is printed on. Based on the (terrible) track record of 4 weeks sick in 5 months, if/when your husband falls sick again, he is still going to take time off and no level of certificate is going to change that.

        •  

          With you on that , it was unfortunate specially when a lad who had not taken a sick leave in last 2 years the chest infection / flu almost had him .

          I wish things could have been done in done in a different way and also he shouldnt have fallen sick , but I think it was not something he chose

          • +1 vote

            @Curiouscat: And the employer didn't choose to have to fall back on their contingencies for 4 weeks in such a short span.

            It is unfortunate all around but it is not the employer's burden to maintain the employment of someone new who acquired a non work related illness.

            • +11 votes

              @tshow: Luckily, we have employment law so that these questions aren't settled by web site posts.
              The law is clear that you can't be dismissed for a temporary illness, with exceptions including excessive leave.
              I don't have the expertise to advise if the OPs circumstances, with the employee likely on a probationary period, offer the employer to terminate without reason, or if "more than 4 weeks" in the period 3 Dec to 29 Apr exceeds the excessive threshold of 3 months in a year.

              •  

                @mskeggs: Yeah I actually feel its interesting, I'm not a lawyer at all but I imagine the person was on probation so they probably could've given any *legal reason and I reckon they would have no trouble dropping the guy even something as simple as 'not a good fit', or 'we're going a different direction'. But dropping him for being sick after it was approved I'm not sure if thats really allowed, as you say you can't be dismissed for temporary illness, so will be interesting how this plays out.

          • +2 votes

            @Curiouscat: It is a sucky situation, but you have to think about it from the employer's POV as well. If your husband has been deemed fit for work, look somewhere else for a job. If you start a lawsuit and word gets round, win or lose he's going to have a hard time finding future employment as word gets round.

  • +5 votes

    OP….the company should not have to keep someone who has been off sick for more than 4 weeks in 5 months. That is an unreasonable burden.

    All this effort to chase the company could be better channelled into getting another job.

    • +6 votes

      The company should also have to abide by the law. It will be determined in due course if in fact that's the case or not.

      • +1 vote

        OP still hasn't said whether husband was on probation or not. Most companies will include a 3/6 moths probationary period for new starters. If the husband was sick for a few weeks and was still within the probationary period, then the best of luck getting a job back.

  •  

    lets just simplify it.

    employed for 5 months. has 1 month worth of sickies.

    yeah not very reliable there sorry when you look at it in that respect

    • +3 votes

      add in public holidays
      I think he was off more than he worked lol

    • +8 votes

      How easy for you to call it 1 month of "sickies" mate. Wonder what you'd call it if you're the patient?

      • +7 votes

        This website is predominantly male and it's very likely that a predominant amount has never suffered from a chronic illness. You'd be more likely to draw blood from stone rather than expecting any semblance of empathy. Hopefully, they all have income protection, otherwise, I won't lie that I wouldn't revel in the schadenfreude.

        • +1 vote

          This.

          I hope that OP and partner don't spend a lot of energy pursuing this and just put that effort into looking for a new job.

  • +3 votes

    From memory you can't do an unfair dismissal claim if employed for less than 6 months. A company I worked for once terminate someone during their probation period who took a total of 4 weeks sick leave during their first 3 months, even though she was good at her job when she was there. According to HR it was perfectly legal

    • +1 vote

      Correct. Can't claim unfair dismissal before 6 months.
      For a small business with less staff (can't remember the number) it's actually 12 months.

  • +7 votes

    Sorry sounds a crappy situation - especially if your partner was genuinely ill.

    I'm no expert and just an internet random but I think this applies I'm afraid

    https://www.fairwork.gov.au/ending-employment/unfair-dismiss...

    Minimum employment period

    Employees have to be employed for at least 6 months before they can apply for unfair dismissal.

    Employees working for a small business have to be employed for at least 12 months before they can apply.

    I think the only avenue open for you to persue them is breach of contract.

    • +2 votes

      Sorry reading again you're not applying for unfair dismissal, you're appealing under "Breach of general protections"

      That being the case the onus of proof is on them to show that they followed correct procedure to terminate and unfortunately for them they can’t terminate on the basis of illness

      For your original link

      Section 352
      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.

      The above applies regardless of probation period

      Attending job was a inherent requirement of the job…

      If they have put that in writing to you then they might be screwed – it’s more or less admitting that they are basing their termination on his illness.

      If they had alluded to general under performance, arranged a few meetings to that effect then your options would be far more limited - idiots.

      Good luck

      • +1 vote

        Yes , HR manager has mentioned that in writing to FWC and as per them s 352 doesn't apply if employee is on unpaid leave.

        •  

          Was he off work when he was terminated or did it happen later?

          • +1 vote

            @nith265: No , he was invited for a weekly catch up with his manager and HR jumped into the meeting , asked him to explain why he was absent , he advised them it was illness which kept him away from work. Then , he was made to sit out , his manager and HR discussed my husbands reasons for absence for 3 mins and decided the employment to be terminated.

            •  

              @Curiouscat: This page suggests that it doesnt matter if it was unpaid leave

              https://www.fairwork.gov.au/leave/sick-and-carers-leave/long...

              •  

                @nith265: First line though : "An employee can take as much paid sick leave as they’ve accumulated …"

                0% OP's husband has accumulated 4 weeks of sick leave in the first 5 months of work.

                • +1 vote

                  @MeesusEff: if you stop reading at the first line you are 100% correct…I'd probably advise reading the next couple lines too though!

                  •  

                    @nith265: Yep I did. Nothing in the 2nd paragraph that applies to OP's situation 'Protection from dismissal while on sick leave' negates the first criteria of 'paid sick leave as accumulated'. I read it as , if you have accumulated sick leave, you can choose to keep it (unpaid) or be paid for it as long as you have accrued it.

                    • +4 votes

                      @MeesusEff: That webpage is pretty clear:

                      1. If you have sick leave accrued you can take it without fear of being sacked.

                      2. If you're sick for an extended period of time you can't be sacked because of it regardless of it being accrued/paid/unpaid leave (within the limits outlined)

                      One point doesn't negate the other.

                      You're finding ambiguity where there really isn't any.

  • -2 votes

    bikies?

  •  

    I read this article this morning 'Extraordinarily heartless': Store sacks chef with cancer for taking sick leave so I wondered if it was the same sort of thing.

    However it is one thing to be sacked by a heartless small business owner and another by a HR Department within an Insurance company. I'm sure that even a half competent HR department would manage to execute a termination correctly.

    White collar workers probably don't need unions, until they do.

    • +4 votes

      I'm sure that even a half competent HR department would manage to execute a termination correctly.

      You'll be surprised what incompetents are in HR this days. My Wife is in HR and she agrees with me. P.S. She is one of the few HR people that sides with the employee.

      • +1 vote

        One of the functions of a HR department is hiring and firing. It is not about 'siding' with an employee, it is about ensuring the correct, lawful process has been adhered to.

        • +2 votes

          You can have a Management HR, which give no support to employees, and just implements what the levels above dictate, or you can have HR that for example discusses requested termination of employee with the manager, before the employee is notified, and see what options there are.
          Many times my wife gets told to "Fire" a person, then she asks the managing person why, and quite often, the "Firing" does not happen, because the Manager just had a bad day at home with partner.

        • +2 votes

          And as you say "One of the function", and that is not the main reason for HR existence.
          Purpose of HR like other departments, is to maximise output of employees. This can be managed with salaries, but many other ways too.
          If you see HR only when you being told that you do not perform, or that there's no salary increase, then that's not HR.

      • +10 votes

        In every organisation Ive worked for, HR's role appears to be to suck up valuable resources while stirring up trouble, all to make themselves relevant to the business.

  • +4 votes

    If your husband is surprised his employment was terminated, he shouldn't be. Of his employment, he spent ~20% off sick. If you were the employer, what would you do? Keep someone who is sick 20% of the time or find someone else?

    I suspect he was still on probation and as such no leg to stand on.

    • +5 votes

      add in public holidays, that's another week or so gone

      •  

        Christmas Day, Boxing Day, New Year's Day, Australia Day, Labour Day, Easter Friday/Monday, Anzac Day. It was very soon after Anzac Day, I wonder about the timing of the sick leave. If it's around public holidays, if there's annual leave that's been denied, mostly on Fridays/Mondays. It could just be the amount of sick leave, but if any of it looks like fake sickie behaviour it could have contributed.

      • +1 vote

        How good is Ctrl+C and Ctrl+V!

  •  

    Are you looking for damages or reinstatement?

    •  

      reinstatement

      •  

        I think legally your choices are limited. Maybe you could try volunteering another period of probation as that protects the employer. I think forcing it will be awkward and hard, maybe there is a chance talking to the old manager and offering them some protection, if he was otherwise good at the job.

        •  

          He did that at the interview after which he was terminated and first time he was ill it was about 12 working days , he spoke with his HR manager and expressed his feelings of being sorry and requested to consider him for next training batch , recruitment happens every 2 months .

          He was assured by his manager that he was one of the best in his jobs and was performing very well so organisation will see how things go as he was back and if the need be he can be put into another training batch / extension of probation .

          Nothing after that happened as HR manager he spoke with had resigned.

  •  

    As long you have a doc certified paper, stating the reason and you have given it in reasonable time you should be covered, it shouldn’t matter how much sick leave you have taken. Obviously they wouldn’t like any staff to have sick leave as it costs them, even one of my old bosses told me the same thing. My advice I would get a lawyer.

    The above are correct if you are on probation in terms you must been given a letter at the start mentioning that you can’t have more quotation certain amount of sick leaves or you would be deemed termination.

    I suspect that you broke rules on certain ground in his probabtion and they never looked upon that, even if he worked for years after, if any reason they were cutting costs they would be effectively bring this about and possibly terminate you above all ground, im suprised they did this, it does happen.

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