Worker's case about termination while on sick leave fails due to late application
The Fair Work Commission (FWC) recently dealt with a case involving a worker who claimed unfair dismissal after being terminated while on personal leave. The case highlighted tensions between an employer's operational needs and a worker's medical absences.
The worker argued she had received no performance warnings and was dismissed while on certified medical leave. According to the decision, she had provided two medical certificates to her employer - one covering the period from 10-20 December 2024, and another from 20 December 2024 to 3 January 2025.
The employer maintained that the worker's repeated absences caused significant problems for the business during the busy pre-Christmas period. The manager grew frustrated by what he viewed as the worker's unwillingness "to follow his instructions and perform the work he required to be done." This disagreement about workplace conduct led to the worker's dismissal in December 2024.
The worker had been employed by the employer since 15 August 2024, working for just over four months before the dismissal. The decision noted that "the circumstances of the dismissal include that [the worker] was away from work, and in [the manager's] view, repeatedly so."
The timing of the dismissal was disputed. The worker claimed it happened on 24 December 2024, while the employer stated the worker was initially informed on 10 December 2024, with written confirmation sent on 24 December 2024, setting an effective termination date of 20 December 2024.
The FWC found that the manager's conversation with the worker on 10 December 2024 could not "be legitimately construed as a dismissal" since the manager "did not in this conversation use words such as 'termination'."
The FWC determined that the manager terminated the worker's employment in the email sent on 24 December 2024, which attempted to backdate the termination to 20 December 2024.
The decision provides limited detail about the circumstances of the dismissal, but it's clear that workplace absences were central to the conflict. The manager "grew frustrated by [the worker's] absences" which he felt were repeated and problematic for his business.
The worker had provided two medical certificates to her employer. The first dated 10 December 2024 certified she was unfit for work between 10-20 December 2024.
The second dated 20 December 2024 covered the period from 20 December 2024 to 3 January 2025. These certificates documented her absence during the pre-Christmas period.
From the manager's perspective, the absences were particularly problematic because the termination occurred during what was described as a "very busy" time for the business. The manager indicated he "needed his workers to work for him" and felt the worker "caused problems for him if she did not turn up for work."
The competing claims about the worker's performance and conduct were central to the case. The worker maintained she "had received no warnings about her performance, poor or otherwise" and emphasized that she was dismissed during a period of certified medical leave.
The employer presented a different view, claiming the worker "refused to perform certain tasks she was asked to do" and that her absences during the busy pre-Christmas period caused significant operational problems.
The decision noted that the manager "considered that [the worker] was unwilling to follow his instructions and perform the work he required to be done."
While these opposing claims formed the core dispute about the fairness of the dismissal, the FWC was unable to fully assess these claims because the application was filed after the 21-day deadline. The worker's application was lodged on 17 January 2025, either 3 or 7 days late depending on which termination date was accepted.
The FWC noted: "There is an obvious contest between the parties that is not capable of being resolved at this time, nor is it desirable or required for me to do so. I do not regard either case as being highly meritorious or highly unmeritorious." This indicates that both parties had arguable positions on the fairness of the dismissal itself.
The worker's unfair dismissal application faced a preliminary hurdle: it was filed outside the statutory time limit. Under section 394 of the Fair Work Act 2009, unfair dismissal applications must be made within 21 days after the dismissal took effect.
The FWC issued directions requiring the worker to file material supporting her request for an extension, but noted: "Despite directions having been given to the parties for the filing of material in support of their respective cases relating to the extension of time objection, the [worker] did not do so, meaning the [employer] then had no submissions or documents to which it could respond."
Despite receiving two deadline extensions and warnings about non-compliance, the worker only provided the medical certificates without filing the required submissions explaining why her application was late. During the hearing, she explained she was assisted by her daughter in making the application and wasn't aware of the statutory time limit.
The FWC couldn't ultimately rule on whether the worker's dismissal during her medical leave was fair or unfair because the application was filed too late. The FWC wasn't persuaded by the worker's explanation for the delay, stating:
"The FW Act provides a three-week period for the making of unfair dismissal applications, partly in recognition that a person who has lost their job needs to assimilate their position, gather their thoughts and obtain advice and then commence an application. The fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional. Similarly, mere ignorance of the statutory time limit is not an exceptional circumstance."
After considering all factors required by section 394(3) of the Fair Work Act, the FWC concluded: "After consideration of the whole the material before me and the legislative criteria, I am unable to be satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by [the worker]."
The decision concluded with the dismissal of the application: "For these reasons, I decline to grant an extension of time pursuant to s394 of the Fair Work Act and have issued an order dismissing [the worker's] application as being out of time."
