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Fanciful’ and ‘ill-considered' dismissal of employee on personal leave


An employer’s dismissal of an employee while she was on a period of personal leave recovering from surgery was deemed to be "illogical” and “devoid of compassion" by the Fair Work Commission. This followed findings that the employer had terminated the long-term employee on the basis that she was no longer fit to perform the inherent requirements of her position despite having no medical advice or evidence to support this.

The employee, Ms Bennett, had worked for the employer as a part-time cleaner for a period of more than 5 years. During this time, the following events occurred:


In 2014, the employee took a period of 10 weeks unpaid sick leave as she required foot surgery.


In August 2016, Ms Bennett took a further period of unpaid sick leave as the required surgery for her other foot. As this second operation was more complex than the 2014 procedure, the employee subsequently required a longer recovery period.


Throughout this period, Ms Bennett consistently provided the employer with ongoing medical certificates from her treating doctor confirming that she was unfit for work for various fixed periods of time.

In January 2017, the employee’s treating doctor completed a Functional Job Description at the request of the employer's return to work coordinator.

In January the treating doctor provided a further medical certificate which stated that Ms Bennett would continue to be unfit for work until the 13th February.  

 On the 16th January, Ms Bennett notified the return to work coordinator that she had a further doctor's appointment scheduled for 10th February and that she expected her return to work date would be clarified at this time.

On the 6th February, the employer’s injury department manager and internal legal counsel, contacted Ms Bennett via telephone and advised that they had determined that she could no longer perform the inherent requirements of her position, and that her employment was terminated.

Ms Bennett received a letter the following day confirming that her employment had been terminated effective immediately due to her being unable to undertake the inherent requirements of her position as a cleaner.

Ms Bennett attended her scheduled doctor's appointment on the 10th February and was given a certificate of fitness clearing her to resume her duties from 14th February.

In representing Ms Bennett, the United Voice union argued that:

  • The employer had no valid reason for dismissing Ms Bennett
  • Due process had not been followed as Ms Bennett had not been properly notified of any purported reason or given an opportunity to respond,
  • The dismissal was particularly harsh given the circumstances given that the employer had made their own medical determination which was "premature and ultimately proven to be incorrect".

In defending their actions, the employer maintained that they were only required to keep the employee’s position open for a period of three months, after which this obligation only extended to an employee who was absent from work on pay. The employer stated that they had no alternative but to terminate the applicant's employment after having reviewed her medical history and had obtained an understanding of her current medical position.

The Commissioner disagreed, saying that there was no valid explanation provided for the employer's “extraordinarily hasty and plainly erroneous decision", and that the inaccuracy of the employer's decision was blatantly exposed by the employee having been given medical clearance to return to work only four days after the dismissal. The reasons provided by the employer were described by the Commissioner as being "erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical, intemperate and devoid of compassion." The employer also failed to satisfy the Commission that there was any genuine reason as to why a decision regarding Ms Bennett’s employment could not have been delayed until after the outcome of the medical review on the 10th February.

In addition, the Commissioner found that:

·         The dismissal was procedurally flawed as the employee was not given any opportunity to respond and was denied natural justice.

·         Providing notification of termination of employment by telephone (or any other electronic means) should be “strenuously avoided”.

It was determined that reinstatement was an appropriate remedy in this instance. 

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.

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