This particular case involved an employee who was required to have an extended unpaid absence from her employment as a cleaner following complicated surgery to her ankle.
About four months after the surgery, a representative of the employer had a discussion with the Applicant about her medical condition and her prospects of a return to work. The representative asked the Applicant to have her doctor complete a Functional Job Description document, to which she agreed. The doctor completed the documentation and certified that the Applicant would be unfit to work for a further period of just over a month.
The representative had a further discussion with the Applicant approximately 2 weeks later, and the Applicant confirmed that she had another appointment with her doctor in 3½ weeks’ and that she expected to have more clarity about a return to work at that time.
Four days before the next doctor’s appointment, the Employer’s Injury Department Manager and Legal Counsel called the Applicant. The Manager made enquiries about the Applicant’s condition, and the scheduled doctors appointment. During that discussion, the Manager formed the view that the Applicant could not perform the inherent requirements of the position, and advised the Applicant that her employment was terminated.
Incredibly, four days later, the Applicant attended her doctor and was given clearance to return to work within 4 days.
The Commissioner found the Employer failed in its defence as it did not have a valid reason for the dismissal, nor did it follow a fair process. The Commissioner stated “There was no proper basis upon which the employer formed the view that the applicant was unable to undertake the inherent requirements of her position. There was no medical opinion providing prognosis for the Applicant’s condition.”
The Commissioner found that the reason for the dismissal was ‘capricious’ and ‘ill-considered’ and ‘devoid of compassion’. He was absolutely scathing of the employer, and the termination process, stating:
“… an employee is entitled to be treated with basic human dignity, and advice of the termination of employment by telephone or other electronic means should be strenuously avoided so as to ensure that the dismissal of an employee is not conducted with the perfunctory dispassion of tossing out a dirty rag.”
The employee was reinstated to her previous position, and an order was made for compensation for her lost wages.
Lisa Aitken is an Accredited Specialist in Workplace Relations Law and the Managing Director of Aitken Legal, a law firm specialising in employment law for employers. The information in this column is intended as a guide only. Liability limited by a scheme approved under professional standards legislation. www.aitkenlegal.com.au.
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