Commission also factors in worker's long service with the company
The Fair Work Commission recently dealt with a case involving a worker who argued she was unfairly dismissed from work after falling sick.
In its defence, the employer argued that it was mutually agreed with the worker to terminate her employment. Hence, no unfair dismissal occurred.
No more remaining leaves
From 24 September 1989, the worker commenced work with the employer and performed her role as a clerk cash controller for over 15 years.
The worker's role included physical paper-based filing duties, performing daily banking duties, and frequent access to several entity bank accounts.
Around June 2022, the worker fell ill and was unable to work. During this time, she was hospitalised and has been sick until her date of dismissal.
The worker then provided her employer with medical certificates stating that she was unfit for work on specific dates.
During this period, the worker has already exhausted her personal leave balance and took long service leave for her to still receive an income. At the time of her dismissal, the worker no longer had any leave remaining.
Consequently, the worker asked her employer that she be allowed to work remotely which the employer denied because her role required in-person-based paper filing duties.
On 5 December 2022, the employer phoned the worker to ask her if she was able to return to work, considering that she had no leave remaining.
According to the employer, the worker stated that while she was unfit for in-person work, she expressed her desire not to resign from her post.
During that day, the employer terminated the worker because she had been absent from work due to medical reasons for over three months and had no sick leave remaining.
"The Respondent [employer] argues that it was mutually agreed with the Applicant [worker] to terminate her employment and had the Applicant [worker] not requested to be terminated, she would be dismissed on the basis that the Respondent [employer] would have had no other reasonable alternative than to terminate her employment as she was unable to perform the inherent requirements of her role," the FWC stated.
However, the worker contended that she was not warned of her dismissal until the phone call on 5 December 2022 and that her role was made redundant.
FWC's decision
Ultimately, the Commission found that the worker was unfairly dismissed and ordered the employer to pay the sum of $26,250 to the worker.
In deciding the case, the FWC considered the worker's work performance and history with the employer noting that the worker had been employed in the company for 33 years and had no other previous issues with her performance.
The Commission further noted that the worker was not sufficiently notified of the reason for her dismissal and was not given the opportunity to respond.
"The Applicant’s [worker's] long service with the Respondent [employer], and the failure by the Respondent [employer] to provide an opportunity to respond regarding her potential termination outweigh the valid Reasons raised by the Respondent [employer]," the FWC noted.
