Manager's harsh response to sick leave sparks heated unfair dismissal dispute
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application involving a worker who was terminated while absent from work due to a back injury. The case raised fundamental questions about an employer's right to dismiss workers during periods of illness-related absence.
The worker argued that his dismissal was unfair because he was terminated simply for taking legitimate sick leave supported by medical certificates.
He contended that the employer's stated reasons for dismissal, such as poor performance and unauthorised absences, were fabricated after the fact to justify what was essentially a dismissal based on temporary illness.
The worker maintained that he had provided proper medical documentation and followed correct procedures when reporting his inability to work.
The employer defended the dismissal by arguing it was based on a pattern of unauthorised absences and ongoing performance issues.
Unfair dismissal claim follows workplace injury
The worker had been employed at a smash repair business as a panel beater from October 2023 until his dismissal in October 2024.
The business had 18 employees, making it a non-small business under the Fair Work Act 2009, which meant the worker only needed six months' employment to access unfair dismissal protections.
The worker's annual salary was $141,482.59 plus superannuation, and his employment was covered by the Vehicle Repair, Service and Retail Award 2020.
The relationship between the worker and his manager, who was both owner and director of the business, had previously been friendly before deteriorating dramatically following the dismissal.
The employment relationship ended abruptly after the worker sustained a back injury and required time off work on 22 October 2024.
Following his dismissal, the worker filed multiple claims against his former employer, including workers' compensation claims and an unfair dismissal application on 14 November 2024 - the last day of the required 21-day filing period.
The employer's insurer accepted liability for the workers' compensation claims, though the employer's legal team remained convinced the worker had falsely claimed to have injured his back at work.
Worker’s termination via text message
The dismissal process began at 4:51am on 22 October 2024 when the worker sent his manager a text message stating:
"I woke up with a lower back pain I can't move, I won't be at work today. I'm sorry." The manager's immediate response at 4:53am was harsh: "Fuck sakes. You have so much fucking time off Just finished [sic] up end of the year."
The text message exchange continued with the worker offering to leave if required, stating: "If you want me to go like this, I go but I can't move." The manager initially appeared to soften his stance, telling the worker to take the day off and get better. The manager said: "Na don't worry. Have the day off and get better but you just have too much time off."
The worker provided medical certificates from two different doctors covering his absence from 22 to 26 October 2024. Despite having proper medical documentation, the manager sent a dismissal message at 2:37pm on 24 October: "Don't bother coming back. Just come pick up your tools on Saturday."
Employer argues worker’s performance issues
The employer's defence during the hearing centred on allegations of unauthorised absences and poor work performance.
The manager provided a list of dates when the worker allegedly took leave without proper authorisation, though he admitted during cross-examination that his wife had prepared this list and he had not reviewed business records to verify the worker's actual attendance.
The employer called four witnesses to testify about the worker's alleged poor performance, including claims that he watched his phone during work hours and produced substandard work that cost the business time and money. These witnesses described various instances where the worker's work allegedly required correction or caused delays.
However, the FWC noted significant problems with this evidence. The manager's wife, who was responsible for maintaining leave records, was not called to give evidence. The four performance witnesses remained employed or connected with the business, giving them a potential interest in supporting the employer's case.
Most importantly, there was no contemporaneous written documentation of any performance issues. The worker countered the absence allegations by providing Google Maps extracts showing he had travelled to and from work on several dates when the manager claimed he was absent.
Is there a valid reason for dismissal?
The FWC examined whether there was a valid reason for dismissal under section 387 of the Fair Work Act 2009. The law requires that any reason for dismissal must be "sound, defensible or well founded" and should not be "capricious, fanciful, spiteful or prejudiced."
The FWC found the employer's evidence unconvincing, stating: "The vague hearsay evidence led by [the manager] is not sufficient to establish that [the worker] took unauthorised absences during his employment."
On performance issues, the Commission noted: "There is a distinct lack of documentary evidence regarding the alleged issues. There is also no reference to [the worker's] performance in the messages sent by [the manager] on 22 and 24 October 2024."
The FWC concluded the employer had attempted to change their story after the dismissal: "I consider [the employer] has attempted to recast the reason for [the worker's] dismissal after the event to assist it in defending his unfair dismissal application."
The text messages clearly showed the real trigger was the injury-related absence. The Commission stated: "[the worker] was protected from being dismissed due to a temporary absence caused by illness or injury."
Employer’s procedural failures in the dismissal
The FWC found serious procedural problems with how the dismissal was conducted. The Fair Work Act 2009 requires that workers must be told why they are being dismissed and given a chance to respond before termination. The worker was not notified of any specific reason for dismissal before the termination decision was made.
The FWC noted: "[the worker] was not provided with an opportunity to respond to the reason for his dismissal before it was communicated to him." While acknowledging the business lacked dedicated human resources specialists, the Commission was critical of the manager's approach, observing that his view of treating workers like family did not justify making "spontaneous emotional decisions to dismiss an employee."
The FWC also considered New South Wales workers' compensation law, which states that it is illegal to dismiss a worker within six months of becoming an injured worker eligible for compensation.
The FWC estimated the worker would have remained employed for six months if not dismissed, during which he would have received $55,513.42 in workers' compensation payments.
Since the worker received these same payments following his dismissal, his actual financial loss was minimal. The FWC awarded $5,441.64 plus superannuation representing two weeks' pay in lieu of notice, concluding:
"I consider [the worker's] dismissal was extremely unfair and that the conduct of [the manager] was inappropriate and regrettable."
