A recent decision of the Fair Work Commission (“FWC”) has resulted in an employer being ordered to pay $30,000 in compensation to an employee. The employer argued that the employee was summarily dismissed for a failure to follow policies and communicate while on a period of sick leave. However, it became apparent during the hearing that the primary motivator for the decision to terminate the employee’s employment was the belief of a Director of the company that the employee’s absence was not genuine. The FWC found this scepticism unfounded and held that the dismissal was harsh, unjust and unreasonable, and the employee had been unfairly dismissed.

Background

The employee had worked for the employer for eight years and then commenced a period of sick leave in 2024, for which the employee provided a series of medical certificates certifying that he was unfit for work due to illness. In accordance with its policy, the employer verified the authenticity of each medical certificate with the relevant clinic.

Following back and forth communication between the employer and employee regarding health updates and various requests over a period of six weeks, the employer issued the employee a letter requiring the employee to return to work or provide adequate medical evidence explaining why they were unable to do so. It stated that failure to comply would result in disciplinary action, up to and including termination of employment. The employer then moved to summarily terminate the employee’s employment (that is, without giving notice to the employee) for serious and wilful misconduct.

Outcome

The FWC considered an employee’s obligations when taking personal/carer’s leave. They stated that the fundamental obligation of the employee in this scenario was to provide notice of taking paid personal/carer’s leave and provide information that would satisfy a reasonable person that the leave was due to personal illness or injury. The FWC found that the employee had complied with this obligation.

When giving evidence a Director of the company stated:

“I believed that he was healthy to return to work and I believe that he had no intention of returning to work when he took sick leave”.

The FWC found the Director’s evidence to be ‘revelatory’ and formed the view that the real reason for termination was a belief that the employee’s absence was not genuine. The FWC found that the allegations put to the employee by the employer were done in an attempt to justify a decision to terminate his employment but, in truth, the employer did not believe the employee was sick.

The FWC concluded that the employer did not have a sound, defensible or well-founded reason for dismissing the employee. The reason for dismissal was an unsupported suspicion of wrongdoing concerning the employee’s exercise of their legal right to take personal leave.

Key Takeaways

This decision serves to highlight the importance of appropriately managing personal/carer’s leave and the requirement for any termination of employment to be substantively fair. Employers must also be aware that:

• there is a limit as to the nature of information an employer can demand be provided by an absent employee and, ordinarily, information certified by a medical practitioner should be accepted;
• notification of the valid reason for dismissal must occur before the final decision to terminate an employee’s employment is made; and
• decisions surrounding termination of employment must be grounded in facts, and personal suspicions should not cloud judgment or inform the decision-making process.