The Fair Work Commission has found that the dismissal of an employee with cancer was harsh, unjust and unreasonable.
An employer who sacked a staff member who refused to disclose that he had cancer has come under fire from the Fair Work Commission for wrongful dismissal.
The Moonee Valley Racing Club (MVRC) fired Executive Chef Andrew Hinchen for “underperformance and a failure to comply with direction to provide consent to the MVRC to seek information from his doctor”.
During his for eight-year tenure, Hinchen was undergoing cancer treatment before being terminated on 13 July 2015, says his lawyer Francessca Lee from McDonald Murholme.
Leading up to the dismissal, Hinchen was harassed for medical documents relating to his treatment and subsequently put through an intentionally strenuous performance improvement program.
Lee says this led to him receiving a number of warnings for trivial reasons and was then eventually dismissed.
Hinchen had been undergoing treatment for cancer and did not want to disclose that he had cancer to his employer in case it led to his dismissal.
In March last year, MVRC issued a first and final warning citing concerns over Hinchen’s performance.
The next day Hinchen provided a doctor’s certificate for three weeks of sick leave and after these three weeks had passed, he was told to take another three weeks of long service leave.
Upon returning to work, he was requested to provide his medical records.
His employer wanted to know the length of time he had been in hospital, where he had stayed, what he was being treated for and who was his treatment provider. Hinchen refused to provide this information.
His employer continued to request to speak to this doctor to see when he could return to work, to plan for any potential impact on the lead up to spring racing carnival, however Hinchen also refused to provide this information.
In early July he took more sick leave and was given an ultimatum to provide information "he wished to be taken into account" or risk termination.
Hinchen did not respond to his ultimatum and was sacked on July 13, his employer citing poor performance at work and refusal to provide more medical information as the reason for his termination.
Hinchen appealed to the Fair Work Commission, saying the request was "invasive, unlawful and unreasonable".
The Commission found that the dismissal was harsh, unjust and unreasonable, even though there may have been performance issues.
While Hinchen’s actions impacted his employer by preventing the Club to plan for his absence, the FWC found his employers did not show any respect for his privacy.
The Commission also found that the request to speak his doctor was unreasonable, and therefore it was unreasonable of his employer to sack him for refusing.
The FWC will announce a remedy in the coming weeks, while Lee says Mr Hinchen was pushing to be reinstated in his executive chef role and to be remunerated for the nine months of lost pay.
“The best remedy for Mr Hinchen will be to have his role reinstated,” Lee told HC Online.
Lee says the MVRC had taken unlawful action against Mr Hinchen.
“One of the reasons why Mr Hinchen had been unlawfully dismissed was because of his refusal to abide by a direction that can only be considered unreasonable,” Lee told HC Online.
“MVRC also relied on Mr Hinchen’s underperformance and conduct as reasons for dismissal but Mr Hinchen denied this,” she says.
“Obviously the performance allegations could have been better dealt with if the MVRC had been reasonable.”
Lee says this decision should serve as an important reminder to employers that a proper process must be followed when effecting dismissal and employees must be shown procedural fairness.
