The Facts
Employee diagnosed with cancer and takes sick leave
A man was employed by a company on a full-time basis as a channel manager.
He was diagnosed with stage IV stomach and liver cancer in August 2012. From that time until his dismissal in July 2013, the employee remained on leave. He had paid sick leave until that ran out and after that was on unpaid leave.
The employee kept his employer updated of his progress throughout his period of absence from the workplace.
Employee seeks to return to work and is terminated by employer
In June 2013 the employee was feeling better and commenced discussions with his manager about returning to work. On 20 June 2013 the employee sent his manager an email confirming that he was looking at a possible return to work within two to four weeks.
The company responded by sending the employee a letter which terminated his employment due to his ten-month period of absence. The letter explained that during these ten months there had been extensive changes in the business and the market, and that this gave the company βno choiceβ other than to terminate his employment.
The employee brought proceedings against the employer, alleging discrimination on the basis of disability. The employer rejected this allegation, claiming that the employee had been lawfully dismissed under section 352, the βTemporary Illnessβ section of the Fair Work Act.
Expert commentary on the court's decision
Court refers matter to mediation on question of disability discrimination
In McGarva v Enghouse Australia Pty LtdΒ [2013] FCCA 1565, the court ruled in favour of the employee, in an interlocutory application that looked at whether the temporary illness provisions could prevent a finding of any other adverse action.
In doing so, the court rejected the arguments of the employer.
The court determined that while the temporary illness provisions exist to allow an employer to dismiss an employee who has been sick for longer than three months, they do not extinguish every avenue for claims under other forms of adverse action, for example discrimination.
The court found that the fact that an action taken by an employer is authorised under the Fair Work RegulationsΒ (3.01, βTemporary absence β illness or injuryβ) does not mean that a claim cannot be made under the Fair Work ActΒ (section 351, βDiscriminationβ) if the action is in breach of the Disability Discrimination Act.
In this case the matter was referred to mediation on the question of discrimination on the basis of disability.
Can you sack someone who has cancer or another serious illness?
Employers must be very careful in dismissing an employee for a non-temporary illness. The temporary illness provisions in the Fair Work ActΒ and Fair Work Regulations do not provide a βsilver bulletβ rebuttal to all other forms of adverse action.
A decision to terminate an employee under the temporary illness provisions should be thoroughly discussed with a lawyer before any communication is commenced with the employee.