Worker claims she was fired after taking three days off
Employees have the right to take sick leave if they’re unwell or injured, according to the Fair Work Act 2009.
Case law has shown that employers who punish employees for taking sick leave could face legal consequences.
In this case, the employee said she was dismissed because she took sick leave. On the other hand, the employer argued against her claim and said it was filed out of time.
FWC application
The worker filed an application before the Fair Work Commission for an unfair dismissal remedy. She said her employer, Flash Harry Hospitality Pty Ltd, fired her without basis.
The worker said she started her employment on 14 February 2022 and was notified of her dismissal on 7 November 2022.
According to the worker, she was dismissed “because she took sick leave for three days, and upon returning to work on 7 November 2022, she was asked to go home.”
She also claimed that “she never heard from her employer [again] after this date.”
The worker filed her application on 18 December 2022, 20 days outside the statutory time limit.
‘Did not know’ about the FWC process
The worker said that the main reason she did not lodge the application on time was that she “did not know about the Fair Work Commission process.”
However, records showed that she was able to contact the Fair Work Ombudsman (FWO) regarding an underpayment claim in November 2022.
In fact, the FWO emailed her a letter, which said:
“Dear [worker],
“Thank you for giving me your assessment statement over the phone.
“Your statement is attached to this email. Here is the link to the Fair Work Commission website for you to contact and discuss your dismissal and treatment at work: Fair Work Commission | Australia’s national workplace relations tribunal (fwc.gov.au).”
The FWC also found that “during her conversation with the FWO, the worker “was made aware of the Fair Work Commission and its dismissal process.”
The worker tried to defend her position and said she “had some language difficulties and was provided an interpreter.”
However, the FWC said that she was “able to contact the Fair Work Ombudsman, and she was able to provide information regarding her underpayment in her statement to a high level of detail.”
“She was able to find the relevant industrial award which also covered her,” the FWC said in its decision.
Thus, considering all these factors, the FWC said it was not satisfied that the worker “was unaware” of the dismissal process, and it also said “the language difficulties were not [insurmountable] that it caused a delay.”
Ultimately, despite her claim that she was fired because of taking sick leaves, “the explanation that she gave did not constitute an exceptional circumstance” to extend her application.
“She has not established a sufficient reason for delay. This consideration weighs against an extension of time,” it added.
The FWC then dismissed the worker’s unfair dismissal application.
