Unlawful Dismissal / Termination

Curiouscat on 22/05/2019 - 10:15
Last edited 22/05/2019 - 11:00 by 1 other user

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.

Education & Work

closed Comments

    • [Deactivated] on 22/05/2019 - 11:49
      +1

      I cannot write a medical certificate that holds an employer liable to maintain a patient's employment.

      I certainly cannot disclose the reason for my patient's visit. That would be patently a breach of privacy unless the patient themselves want me to include the reason, however, it does not change the significance or weight of the certificate.

      Yes, terminating employment on sole grounds of being sick is unfair. Terminating employment on the grounds that the employee has not been able to work four weeks in five months and likely, a replacement has been employed, sounds perfectly legitimate.

      I may be missing something or out of touch but I too cannot adapt my business around an absentee employee.

      • Curiouscat on 22/05/2019 - 12:04
        +3

        Agree with you from an employers perspective , need someone to come in to work and I'd happily pay.

        From an employees perspective who has mortgage to take care of , who was performing well in the job , offered to get a medical checkup on joining from someone who was on employer's panel, requested to consider extend probation , be able to join next training batch , not being offered any return to work assistance or adjustments at all.

        Its more of an accident which has caused damage to both parties however , - employer being a bigger corporation has more ways to sustain and deal with an employee who has been sick for a longer time than terminating an employee with less than half day of notice and not following the return to work / duty of care commitments expected from employer .

        We will continue to explore legality of matter and see how we roll.

        He is also applying for jobs and has had 3 personal interviews for a new job in last one week , keeping fingers crossed.

        • [Deactivated] on 22/05/2019 - 12:09
          +5

          Its more of an accident which has caused damage to both parties however , - employer being a bigger corporation has more ways to sustain and deal with an employee who has been sick for a longer time than terminating an employee with less than half day of notice and not following the return to work / duty of care commitments expected from employer .

          The wealth of the employer shouldn't be used as consideration for obligation to provide concessions.

          Good luck with your husband's job search. I sincerely hope he finds new employment.

      • nith265 on 22/05/2019 - 12:10
        +2

        Yes, terminating employment on sole grounds of being sick is unfair….

        Fortunately (or you would say unfortunately..!) it is illegal. You can’t terminate someone because they are ill (regardless of probation period)

        https://www.fwc.gov.au/general-protections-benchbook/other-p…

        For an employer to act in breach of s.352, there must be an awareness that the absence was because of an illness or injury and this absence must have been the reason for the termination. This means that the employer must prove that they either did not know the reason for the absence or that they did not terminate the employment because of the absence

        Probation or minium employment periods do not apply – they are classed as “general protections” - it's not an unfair dismissal claim

        The employers were idiots – if they have explicitly said we are sacking you because of absences and those absences were because of documented illness they are in trouble. They could have just said we’re not employing you after probation period, had a few meetings to that effect and little could have been done.

        • [Deactivated] on 22/05/2019 - 12:14

          Fortunately (or you would say unfortunately..!) it is illegal. You can’t terminate someone because they are ill (regardless of probation period)

          Why would I say unfortunately? I literally just said it would be unfair and provided a scenario where something other that illness is in consideration (ie. Someone else has been employed to cover the shortage due to prolonged/repetitive leave).

          The employers were idiots – if they…

          Unnecessary assumption.

          • nith265 on 22/05/2019 - 12:19
            +1

            @[Deactivated]:

            Why would I say unfortunately?

            The general vibe of your comments…! Sorry not meaning to offend

            Unnecessary assumption.

            OP says they sort of did say this

            • [Deactivated] on 22/05/2019 - 12:31

              @nith265: They did but they worded it very objectively

              "Attending job was a inherent requirement of the job…"

              I mean, I can't fault the expectation and it isn't discriminatory to the sickly.

              Just sounds like misfortune which the employer has already wore the cost of. Short notice casuals are expensive and typically not as efficient (not the individual's fault but it is a foreign setting) nor is training new staff.

              • nith265 on 22/05/2019 - 13:27
                +4

                @[Deactivated]: Unless OP is leaving something out the non attendance was 100% because of a documented illness.

                "Attending job was a inherent requirement of the job…"

                It is indeed objective but it's also a complete tautology. I’m sure the job description didn’t say:

                “Doing you job is the major KPI of your job”

                It’s objective and logical but it doesn’t actually explain anything.

                I hate it when people exploit employment loopholes too but if someone is genuinely sick perhaps they've been treated a bit harshly.

  • Donaldhump on 22/05/2019 - 12:25
    +6

    is this serious, he was off 20% of his time. if he has a serious illnes then maybe he should get a part time job.

    why is he sick so much? I work with a guy who has 1-2 days off every week, and it causes alot of stress on the other employees, and he doesn't care, and only because he cant be bothered coming in, or gets a little stressed/angry

  • Curiouscat on 22/05/2019 - 12:31
    +2

    well , it was a lot serious than you can make of with the information provided . His blood pressure was 182 on one instance when we were at doctors after 3 days there were traces of blood in his vomit.

    I am thankful to GOD nothing bad happened to us and he is back to his normal. It could have been a lot worse and all this was happening when news papers in QLD were full of news like this

    https://www.news.com.au/lifestyle/health/health-problems/flu…

    • Donaldhump on 22/05/2019 - 12:57

      and the other 22 days?

      does he make up any time or work weekends, to catch up?

      as much as being sick sucks, a company needs someone 5 days a week, they cant have an average of 4.

      i mean who does his 5th day of work every week?

      • Curiouscat on 22/05/2019 - 13:57
        +1

        Someone who is seriously ill and not chucking on sickie because he feels like it.

        • Donaldhump on 22/05/2019 - 14:14

          i feel your plight.

          but he needs to work part time then 4 days a week flexable some how ,

          its horrible being sick, but it would be equally horrible if a company needs a person 5 days and only gets them 4.

          is the sickness physical or mental? will it fix itself or is it forever.

  • salmon123 on 22/05/2019 - 12:33
    +2

    his employment was terminated on 29 Apr 2019

    How many jobs has he applied for in the past 23 days?

  • Curiouscat on 22/05/2019 - 12:35
    +2

    last week 39 , total of 104 applied , progressed to personal interviews in 6 jobs.

    • salmon123 on 22/05/2019 - 16:55

      Hopefully one of those 6 work out … easier to just move on than fight with the previous company, especially since you're only seeking re-in statement.

  • Donaldhump on 22/05/2019 - 12:58

    hypothetically you had a builder build u a house, and he was sick and late with delivery by 20% would you sack him?

    • [Deactivated] on 22/05/2019 - 13:06
      +1

      No. Because he was really good at his trade. I'm angry my house will be late but we negotiate and I give the builder another chance.

      Bob the builder is awesome.

      • [Deactivated] on 22/05/2019 - 13:58
        +5

        What if you had to keep paying rent in your current place, in fact, since you're in a pickle and don't want to look for another short term accommodation, you're paying higher rental so the landlord will extend your lease on a week to week basis?

        … and Bob changed his name as is now Raphael (and he isn't Spanish/Latino) because it fares better with the ladies or dudes.

        He ain't Bob the builder no more and his tardiness is costing ya.

        • [Deactivated] on 22/05/2019 - 14:43
          +3

          That's my tipping point. Watch out Raphael.

    • Quantumcat on 22/05/2019 - 15:23
      +1

      It isn't the same thing because you are paying a builder for a job to be done, not as an employee with a salary and benefits

      • Donaldhump on 22/05/2019 - 16:47

        your paying the builder to build something by a certain date. if he is off 20% it will be late

        bad example maybe,

        lets say you run an airline and a pilot is off 20% of the time, are you going to keep them on???

        • o53djz7qTPY4der on 22/05/2019 - 16:48

          Any job. 20% absence is unacceptable - there are plenty of people to take your place.

          • jenkemjunkie on 22/05/2019 - 18:09

            @o53djz7qTPY4der: Maybe at a factory in China. Here it’s fine.

            • Donaldhump on 23/05/2019 - 08:13

              @jenkemjunkie: Yet if a flight is delayed cos the scheduled pilot is sick again you would whinge like a bitch

              But as the small airline owner with 3 pilots, you wouldn’t sack him/her and thus can’t replace them because you think it’s no worries to be absent 20% and you can’t hire anyone else because you are running a tight ship, and now you have to cancel a flight, lose money, in fact compensate money and have your ratings destroyed.

    • jenkemjunkie on 22/05/2019 - 15:34

      Building contracts have clauses that cover such scenarios, subsequently such delays could be disputed under ‘delay and disruption’ for damages…so it’s a pretty shitty, simpleton analogy you’re drawing there.

      • Donaldhump on 22/05/2019 - 16:48

        lets say you run an airline and a pilot is off 20% of the time, are you going to keep them on???
        lets say you run a cafe and your barista is off 20% of the time, are you going to keep them on???

        i feel for the person but if they have 20% sickness, they need to get on top of that before looking for work or go part time.

        • jenkemjunkie on 22/05/2019 - 18:08
          +2

          Your lack of business acumen is telling. Let’s say you run a simpleton analogy business and your hired simpleton was only able to foresee future sickness 20% of the time. Would you keep them on?

          According to you - probably not. People should put in the calendar their future sickness events. “Sorry can’t go to work in December boss, I’ve scheduled cancer then, sorry that you hired me, I should have known better than to have applied for this job.”

          But I can understand where you come from. You love pandering to authority and the boss.

          • Donaldhump on 23/05/2019 - 08:07

            @jenkemjunkie: Your stating a point I already agreed with, if it’s unscheduled cancer or something is fine.

            But Say u ran a 3 man business I dunno let’s call it “gronk and sons” and one your employees is absent 20% so you pay the other employee overtime to do the work. Maybe that new person has chronic fatigue or just loves 3 day weekends, Yet you can’t hire someone else because you have no budget. What are you to do

            This guys illness smells of several different ailments / can’t be arsed, and not one specific big issue, and ongoing for ever, he needs to sort them out or go part time, it’s unfair on his colleagues

            End of the day his company needs someone full time, he just started, evertime he says his health is better he is sick again, he is a liability to them, he needs to go part time or sort his health out and then find a job,

            If I was this sick I would work 3 days a week.

    • abb on 23/05/2019 - 09:48
      +2

      Construction project only late by 20%? I'd recommend him to everyone!

  • LuckyLuke on 22/05/2019 - 14:13
    +13

    Hello OP, I am an Employment Lawyer and know exactly what you are talking about. It is probably best if you PM me.

    For those who are reading this, it is unlawful to sack someone for a temporary illness or injury. Temporary is defined as 3 months:

    https://www.fwc.gov.au/general-protections-benchbook/other-p…

    • Curiouscat on 22/05/2019 - 14:15

      Responding now

    • [Deactivated] on 22/05/2019 - 14:25

      Don't many probation contracts state they can be terminated with no reason with X many days notice paid?

      • MessyG on 22/05/2019 - 21:51
        +5

        They do but in this case they've given a reason (too much sick leave) and that's actually illegal regardless of probation period. Employer has royally shot themselves in the foot.

        • abb on 23/05/2019 - 09:50

          What's the bet that if OP returns to work they dismiss him with no reason given 2 days later?

    • Curiouscat on 22/05/2019 - 14:57
      +2

      Thanks for the guidance, appreciate your good gesture of guiding and suggestion of going without a lawyer at FWC

      Thanks heaps

    • Donaldhump on 22/05/2019 - 16:50
      -3

      is that a continuous 3 months.

      i can goto my gp right now and say i have anxiety need 2 months off. sit back and watch world cup cricket

    • sakurashu on 23/05/2019 - 10:18

      This sounds like it was over a period longer than 3 months, so it isn't a temporary illness by that definition??

  • djones145 on 22/05/2019 - 14:30
    -8

    ambulance chasing lawyers are now on ozbargain chasing termination and insurnace, crash topics

    • Curiouscat on 22/05/2019 - 14:56
      +3

      Well, he said go without lawyer and guided how things can be done in a correct way.

      So,if you wear black glasses then world is without any colors but hey its just you. :)

      • johnno07 on 23/05/2019 - 11:40

        if you wear black glasses then world is without any colors

        Huh?

    • LuckyLuke on 22/05/2019 - 17:59
      +9

      I am sorry you feel that way. I was looking to help someone who needed it.

      I actually consider it a joy to be generous in the same way that my Lord has been generous to me.

      • R-Man on 22/05/2019 - 20:07
        +2

        Username checks out. Good to see you helping out mate!

  • xuqi on 22/05/2019 - 15:28

    Sydney chef awarded $18,200 payout after being fired after hospital stay

    https://www.msn.com/en-au/news/australia/extraordinarily-hea…

    https://www.news.com.au/finance/work/at-work/sydney-chef-awa…

    Chanintorn Siri had worked for wholefoods store Urban Orchard Food for more than two years when he was dismissed in November 2018.

    Shortly before his sacking, Mr Siri was granted three days of sick leave by his employer after he was admitted to Concord Hospital in Sydney’s inner west after experiencing serious stomach pain as a result of pancreatic cancer.

    But two days later, he was summarily dismissed during a telephone call.

    • [Deactivated] on 22/05/2019 - 15:32
      +2

      that has nothing to do with this, nor can it be used as a guide

      • xuqi on 22/05/2019 - 16:11

        No, but its a good illustration of how employers can & are held to account.

        In this instance, there doesn't seem to have been any performance management but rather a straight termination.

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

    • [Deactivated] on 22/05/2019 - 17:21

      The example is someone who was terminated after being hospitalized and being granted 3 days leave at a place he was working in(no mention of other leave taken) for two years.

      This scenario is someone who has taken four weeks supported only by medical certificates after working for five months.

      • nith265 on 22/05/2019 - 23:12
        +1

        @tshow - You say "no mention of other leave taken" but the article says:

        "…took regular sick leave for 'no reason'…"

        Unlike OP's case the employers were actively suggesting he was taking unwarranted sick leave and being dodgy with time sheets.

        I assume when you mention the time frames you're highlighting that yes, in both examples it's illegal to sack someone because of illness

  • c95mbq on 22/05/2019 - 16:04

    Generally speaking, I think fewer periods of sick leave, but longer in duration, is seen more favourably than the other way around. Would have thought warnings and performance management to have come into play well before termination

  • BestofOZB on 22/05/2019 - 16:12
    -1

    "Anderson v Crown Melbourne Ltd [2008] FMCA 152 (3 March 2008), [(2008) 216 FLR 164].

    The applicant was dismissed after calling in sick. He produced a medical certificate but had previously expressed that he intended to attend a football game in Perth on the day in question.

    The Court did not accept the validity of the medical certificate and found that the applicant was not ill on the day in question. Therefore the termination was not for ill health but for the perception that the employer had of misconduct by the applicant"

    Although he has medical certificates, being sick for more than a month for flu and chest infection as you mentioned above is hard to swallow, unless he was an inpatient in ICU! Without knowing all the details, I don't see how this is going to go his way, but good luck.

    • [Deactivated] on 22/05/2019 - 17:33
      +1

      Benefit of the doubt, OP's case isn't fraudulent use of sick days. I mean four weeks is definitely not within paid sick days so this is a significant loss of income. It makes no sense to take lots of unpaid sick days.

      One thing to take from the ruling is that a medical certificate isn't sacrosanct especially when there are four weeks worth in five months.

      It is my opinion that the employer has not acted unreasonably in replacing the employee and thus cannot maintain the employment of one of these employees. Of course, anyone unbiased would likely not retain an employee who has been absent frequently and favour employing someone more dependable. This is no more discriminatory than it is to buy goods with intact packaging. It's just less risk moving forward.

      Law aside, the employer should be a willing referee and commend the employee regarding whatever occupational qualities he has and withhold commenting on their sick days. The employee should also walk away with acknowledgement that being sick (except work related illness) is an individual's problem and shouldn't attempt to stick liability on someone else just because they can.

      • BestofOZB on 22/05/2019 - 20:28

        I didn't say it was fraudulent, but hey, 4 weeks plus all the public holidays in between for the flu, in summer, is a bit over the top unless he has some sort of a very bad lung pathology. You don't need to be a doctor to know that :)

        • [Deactivated] on 22/05/2019 - 20:30
          +2

          Preaching to the choir. I'm on the side that it should be mutually understandable that the employment arrangement has come to an inevitable road block.

          No one's fault.

          References to be given by employer to commend skills and not bring up issue of sick leave.

          Employee to graciously leave and keep the door open by offering casual/short notice availability should future need arises.

  • doodo477 on 22/05/2019 - 17:22
    +2

    I would of done it a bit differently than you. I would of discussed the matter with the employer, that the amout of leave he was taking was excessive and see what arrangement could be achieved. I would of voiced my view-point that my illness or welfare was getting in the way of the position and assigned role and if they was any other possibility of changing roles.

    If that wasn't available, then I would of thank them for their employment and hand in my resignation and move onto a more casual job.

  • Homr on 22/05/2019 - 18:49

    Is your husband Quantamcat?

    Anyway, unfair dismissal laws don't apply if you've been in the job less than 6 months.

    http://www.fairwork.gov.au/ending-employment/unfair-dismissa…

    Other option is to apply for dismissal due to discrimination, that will be your best bet.

  • drprox on 22/05/2019 - 19:10
    +2

    Probation probation probation probation..seriously it's killing us OP. Was he on a P period or not!?

  • freemoneyhunter on 22/05/2019 - 19:33
    -2

    Your job is the most important thing, You should always be prepared to show up rain, hail or shine.

    • jenkemjunkie on 22/05/2019 - 19:56

      Yeah. If you’re a wagecuck lol

      • Flyingmoo on 23/05/2019 - 09:27

        Rather be a wagecuck than unemployed

      • [Deactivated] on 23/05/2019 - 09:34

        There are plenty of perks to being reliable over and above job stability and salary, including travel and 24 hour availability bonuses, if you choose.

  • Cul8r on 22/05/2019 - 20:00

    If it was your business… would you employ someone that only works 80% of the time?

    First 6 months is important, if you’re only going to attend 80% of the time when it’s important…what’s going to happen if he decides to take the piss?

    I understand it could be legitimate, reality is when he’s away either the output won’t be delivered or someone else in the team will have to pick up his slack. If it were my team, or even my business I would have ended it when he called in for his 16th day off… likely contemplated it day 10…

  • yellowfever on 22/05/2019 - 20:36

    The company pays the cost of loss time and everyone else that is still working takes the burden with it. Look at it from that perspective and then perhaps you might reconsider your if you really want to pursue your "legal rights".
    Surely there had to be lack of communication and loss trust for the situation to end this way.

  • malich on 22/05/2019 - 20:39

    Out of interest, what do you seek to achieve through FW? Best case scenario they will force the employer to pay and extra month of wages to cover for the loss. The employer does not have to take your husband back.

    Perhaps it's better to spend his energy looking for another job?

  • thriftybunny on 22/05/2019 - 20:55
    +7

    I'm surprised at how cold some people sound. It's not like op's husband chose to be sick. It sounded like he was really unwell & I doubt his absence had any significant impact to the insurance company. If op's husband was in a critical function then the organisation has a responsibility to mitigate key man risk, if he's in a call centre or something they just make a few calls less. Organisations are often short on people & it doesn't mean everyone else work more, it just means they produce less.
    Good luck OP.

    • Vote for Pedro on 22/05/2019 - 21:47
      +3

      Yep. Seems like compassion is out the window these days. Things go wrong sometimes despite our best intentions. Thankfully we have some level of safety net protections and aren’t just commodities for businesses to use and dispose of at will. All the best OP

    • JimmyF on 22/05/2019 - 21:54
      +1

      I'm surprised at how cold some people sound

      One was sick 1 day a week on average for the 5 months they worked there.

      If you worked with someone who was 'away' so much and say that work was pushed onto you instead, then what would you think?

      Compassion only goes so far these days.

      • thriftybunny on 23/05/2019 - 07:51

        Fair enough, so would you see it differently if he has been there for many years and took the same amount of sick leave recently?

    • [Deactivated] on 22/05/2019 - 23:37

      You're not really surprised. You use that for passive aggressive dramatic effect. I think the correct terms are haughty and self-righteous. It's always the condescending person acting surprised or disappointed.

      • thriftybunny on 23/05/2019 - 07:53

        "I wasn't expecting" Does that sound better?
        You need to judge less.

        • [Deactivated] on 23/05/2019 - 08:12

          Well, that is more truthful. False expectations of others and lofty imperiousness. I need to judge less? Your original moral shaming comment sits in judgement of others.

          Given wine grapes need to be picked when ripe, or to avoid a frost or smoke, would you hire someone that is sick all the time and miss a harvest or would you make a cold, hard business decision to hire someone able and make some wine?

    • o53djz7qTPY4der on 23/05/2019 - 00:07
      +1

      It's not about us being cold. You have to realise though, their employer is running a business. For the last five months that employer has not been able to rely on this employee 20% of the time.

      What should the employer do?

      If the shoe were on the other foot, that is 20% of the time the employer underpaid or cancelled shifts due to extraneous circumstances, what would you the employee do? I suspect you would (try to) find another job that is reliable.

      • Cul8r on 23/05/2019 - 06:32

        What should the employer do?

        Maybe just start passing those costs on to the members… sounds fair for all of us.

        • thriftybunny on 23/05/2019 - 07:55

          No that wouldn't be fair at all.

          But, do you both think the employers always hire exactly the right amount of people and work is constantly evenly redistributed between the number of people?

  • T1OOO on 22/05/2019 - 21:51
    -1

    Never change when your sick. Did he know this before ? Or found out after ?

  • MessyG on 22/05/2019 - 21:54
    +5

    You can't fire someone for using their sick leave entitlement, probation or not. It doesn't matter what everyone feels about the ethics of the OP doing that (and we don't know what medical condition they have - they could have broken a leg which would have taken 6 weeks to recover from, but no ongoing effects). If the employer had any knowledge of employment law, they would never have given a reason for the termination. Now that they've said 'too much leave', when that leave was valid, they're in big trouble.

    OP you need to contact the Fairwork Ombudsman. They want to hear about this.

    • Curiouscat on 23/05/2019 - 06:58

      Thanks, we have contacted the FWC and expressed our concerns that this action by employers is violation of general protections.

    • sakurashu on 23/05/2019 - 10:21

      "using their sick leave entitlement" - They have used far and above this amount and it looks like they were sick OVER the 3 month definition of a temporary illness.

  • Amour on 22/05/2019 - 23:18
    +1

    Below is a link to a recent case where an employee who was terminated during probation was successful in their general protections/adverse action claim.

    https://www.hrmonline.com.au/section/legal/firing-employees-…

    This example states that you can’t terminate someone for exercising their workplace rights. As someone posted earlier, you can’t be dismissed for taking less than three months consecutively, or in total over a 12 month period….

    Good luck.

    • Homr on 23/05/2019 - 08:06

      Interesting, so the general "Not the right fit" reason is not good enough for employers now??

  • tolchok on 22/05/2019 - 23:30
    +2

    I work in this field and there has been a lot of misinformation from a number of OzB members, especially regarding a workers rights during a 'probationary period'. Fortunately, as some OzB members have pointed out, there are some protections prior to an employee being covered for unfair dismissal (which occurs after 12 months if the employer and associated entities has less than 15 employees, or 6 months if the employer and associated entities has 15 or more employees regardless of any purported 'probationary period'). I'll post with some general information tomorrow, as it is a bit late to write up now.

    • Homr on 23/05/2019 - 08:03

      which field you work at? HR? Employment laws?

      • [Deactivated] on 23/05/2019 - 08:30
        +1

        Insurance and they're taking a sickie.

      • tolchok on 23/05/2019 - 09:17

        I work in Industrial Relations and represent clients in matters before the Fair Work Commission ('the Commission') under s.596 of the Fair Work Act ('the Act').

        Most of my clients are employees, though I do also occasionally represent employers. I personally only take on cases where I believe my client to be ethically right and where I genuinely believe they have an arguable case, which unfortunately often precludes employers in unfair dismissal and general protections situations. I am very happy to tell a dismissed employee if I don't believe that they have a case, or if they may have a case but that I am not happy to represent them due to my own ethical compass. I am also happy to represent employers when they have a case lodged against them that has been made vexatiously, without reasonable cause or where the case has no reasonable prospects of success; though these are much less common than some employer groups and their mouthpieces would have you believe. I also provide advice to employers to help them avoid doing anything that would lead to an unfair dismissal or general protections claim, help them remedy underpayments if a FWO claim has been lodged, and assist employers with enterprise bargaining and creating EBAs.

        In the OP's case, it appears on the information provided at this stage that the employer dismissed her husband for a proscribed reason. Section 352 of the Act makes it explicit "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."

        • Homr on 23/05/2019 - 10:09

          So are you saying Employer is the wrong at this stage?

          If so, even though that the law, that's a farce. Yes its very unfortunate that the employee is ill but at the same time the employer shouldn't suffer because of it and the lack of attendance from the employee puts alot of stress for other people at the workplace. That's what probation period is for right???

          • jv on 23/05/2019 - 10:21
            +1

            @Homr:

            puts alot of stress for other people at the workplace.

            What they are saying is that it should be called the UnFair Work Act, as it only really supports employees. The Employer doesn't have any rights, even though they might be working 80-100 hr weeks and earning a lot less per hour than the employee who cannot be sacked. It doesn't consider that the employer might have family, bills to pay, no sick leave, no holiday leave, but the employee can pretty much do whatever they like and hold the employer to ransom.

            • tolchok on 23/05/2019 - 10:56

              @jv: Actually, it is really easy to dismiss an employee if there is a valid reason for dismissal which is not a proscribed or prohibited reason.

              If an employee has not worked the minimum employment period, then it is easy to dismiss them even without a valid reason, which I constantly have to explain to upset people who have been dismissed but have not worked long enough.

              The Fair Work Act also supports employers and business owners as well as employees, including providing the ability to enter into enterprise bargaining and giving the employer recourse against some industrial activities.

              Also, just in case you missed it, the removal of penalty rates for employees in some industries was because of s.156 of the Fair Work Act.

              For general protections, an employer can make a claim against an employee who (a) ceases work in the service of the employer or (b) takes industrial action against the employer for a proscribed reason.

              The Act also provides employers the ability to stand down employees in certain circumstances, the ability to deal with certain disputes in a low cost fashion and possibly most importantly attempts to provide a level playing field for all businesses.

          • tolchok on 23/05/2019 - 10:34
            +2

            @Homr: Yes, I'm saying the employer is in the wrong.

            From your comments, I believe we may not be ethically aligned. I do not think that protections around dismissing someone for discriminatory reasons or due to a temporary absence due to illness or injury is a farce. You would potentially change your tune if it were you in this situation.

          • nith265 on 23/05/2019 - 10:47

            @Homr: If the employer, like you felt that the fulltime laws are “a farce” they had the option of instead offering a fixed term contract or a casual contract.

            If they were still in probation they had the option to caution and sack them for under performance. Plenty of legal options for the poor employer, they just chose not to take them.

            Within limits, you cant sack for illness - simple.

            • Homr on 23/05/2019 - 11:02

              @nith265: Fair enough, so the employed "said" the wrong reason. If they simply said "under performance" then they would be ok?

  • [Deactivated] on 23/05/2019 - 07:55
    +1

    Insurance companies really do screw you over

    • jv on 23/05/2019 - 10:23

      lots of examples of that…

      Only last year i was listening to a story about a dad who had terminal cancer, and the life insurance company was making excuses not to pay out the policy.

  • lltravel on 23/05/2019 - 08:30
    -3

    not sure if op is serious

    Husband takes 4 weeks off and expects to get a free ride

    If you have a medical condition then find a job that suits

    People need work done. Your husband was "sicK" so he couldn't get the work done

    Plain and simple
    Move on and stop trying to get a payout like they owe you something.

    • Curiouscat on 23/05/2019 - 08:51
      -1

      Hi Keyboard warrior,

      Husband had to take days off owing to illness, medical conditon was not existent for 38 years of his life and propped up. All leaves were unpaid what on earth makes you filled with all this negativity.

      Employer and employees need to follow the law to make sure that work is done.

      For starters this conduct of employer allows us to apply for centerlink payments which we haven't. This lad has applied for more than 100 jobs and I hope he lands in job soon.

      We have not asked for payout, we have asked for reinstatement as he is now back to his normal health and fitness.

      You need to move on and get a life which is without preconceived notions about others.

      • lltravel on 23/05/2019 - 09:16

        cool story

        Why would you even want to work for someone who has fired you

        re-think your strategy

        He will most likely get a hard time if he is reinstated

        • Curiouscat on 23/05/2019 - 09:20

          All facts mate.

          Agree with you on the reinstatement part.

    • Homr on 23/05/2019 - 10:13
      +1

      yeh I have to agree with that one.

      +1

      Hopefully OP's Husband is well now and looking to find another job.

  • Moderatorscotty on 23/05/2019 - 11:46

    Thread closed as requested by OP.

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