Unfair or warranted? Employer demands uniform return and suggests a different career
The Fair Work Commission (FWC) recently examined a general protections claim involving a casual hospitality worker who argued he was dismissed after providing a medical certificate stating he had tuberculosis and was unfit for work.
The case arose when the worker submitted sick leave documentation and asked whether he could return to work after his recovery period, leading to an email from his employer that he interpreted as termination.
The worker argued he had been dismissed through an email that directed him to return his uniform and badges, recommended he look for different employment in an unrelated industry, and wished him well for his future.
He maintained that despite the employer's claims of no dismissal intent, the communication objectively conveyed termination of his employment relationship.
The employer contested the worker's claim, objecting on the basis that there was no dismissal and conceding that "while the language may have seemed conclusive, there was no intent to terminate the employment."
The company argued that the worker's position in hospitality with close client contact was not suitable given his medical condition and safety concerns for guests.
Casual worker seeks sick leave for medical condition
The employment relationship involved a worker employed as a casual hospitality worker who worked an average of two to three days per week for a hotel company.
On 18 March 2025, the worker obtained a medical certificate citing a period of unfitness for work until 2 April 2025, which stated he was being treated for a respiratory condition that he confirmed was tuberculosis.
The medical certificate also noted that the worker was unable to travel due to his medical condition. On 19 March 2025, the worker provided the medical certificate to management via email, stating:
"Since I have a health issue, I have been advice to take medicine and take a rest until 2 April 2025 based on government recommendation. Because of that, I would like to ask for sick leave until that time."
The worker's email also included a specific inquiry about his future employment status, asking: "Also, I'd like to confirm whether I can still come to work after that or not? Thank you and looking forward for your reply." This question would become significant in determining whether the employer's subsequent response constituted a dismissal.
Employer responds with termination concerns over guest safety
On 26 March 2025, the employer sent an email response that the FWC would later refer to as "the Dismissal Email."
The communication began by providing the worker's latest payslip and payment details, then addressed his medical situation:
"Regarding your case I've spoken with my Lawyer... my lawyer advised me Your position as casual and night auditor working in hospitality industry with currently situation is NOT suitable to services check in guests For guests healthy and safety 100%."
The email continued: "So, we strongly recommended your take care of your healthy to get recovered and you are going to looking different jobs somewhere else which is not related People to People services job can impacting others."
The employer specifically directed the worker to "return [hotel] paid your uniforms and badges according to the Hotel Working Policy."
The communication concluded: "At last, [hotel] team wish you are all the best in further and having a great healthy in further as well."
The employer later argued there was no intent to terminate employment despite the language used, but the FWC would examine the objective meaning of the communication.
Commission examines dismissal versus safety concerns
The FWC noted that "the language of the Dismissal Email, however, must be considered objectively" regardless of the employer's stated intent.
The Commission found that the email clearly: "Directed [the worker] to return his work uniform and badges; Recommended he look for a different job in an unrelated industry; and Wished him all the best for his future."
The Commission observed that "the worker was not invited to respond, nor was any alternative arrangement offered. On its plain terms, the Dismissal Email conveyed a unilateral decision to terminate the employment relationship."
The FWC applied established precedent that "an employment relationship may be terminated at the employer's initiative even where the employer denies that a dismissal has occurred, if their conduct or communication has the effect of bringing the relationship to an end."
The Commission determined: "Whatever [the employer's] intention, the effect of the Dismissal Email was to convey that [the worker's] employment could not and would not continue. This constitutes a dismissal within the meaning of s 386(1)(a) of the Act."
The FWC found that the objective interpretation of the communication was more important than the employer's subjective intent.
Jurisdictional objection dismissed on dismissal grounds
The FWC acknowledged the employer's concerns about operational challenges, noting: "I accept that the nature of [the worker's] illness may have presented operational challenges."
However, the Commission found that "the Respondent's course of action amounted to a summary and unilateral termination, prompted by perceived inconvenience or risk, without regard to due process."
The Commission referenced established principles that "illness or injury does not of itself constitute a valid reason for dismissal unless it goes to the capacity of the employee to perform the inherent requirements of their job, and that any dismissal for incapacity must follow a procedurally fair process."
The FWC noted: "No such process occurred here. The respondent did not seek further medical information, engage in consultation, or explore reasonable adjustments."
The FWC concluded: "I am satisfied that [the worker] was dismissed within the meaning of s 386(1)(a), and the jurisdictional objection must accordingly be dismissed.”
The Commission found that despite the employer's safety concerns about tuberculosis in a hospitality environment, the manner of termination constituted a dismissal rather than a legitimate health and safety response with proper procedural fairness.
The matter was then listed for further conference.
