The Full Federal Court has upheld the dismissal of an employee who was terminated for using sick leave when his application for annual leave was declined.
The employee was sacked after he took sick leave on the days for which he had initially requested to take annual leave. The request for annual leave was declined due to low overall crew numbers and that the application had not been made within the period required under the leave policy.
Upon being notified that his leave application was declined, the employee informed his manager that “he would be sick anyway” and would obtain a medical certificate from a doctor to substantiate his absence. The manager cautioned the employee, to the effect that if he did call in sick, he may face disciplinary action.
The employee subsequently called in sick, stating he would not be able to attend work for that day and the following day on the advice of his doctor, who had supplied him with a medical certificate.
Upon his return to work he was required to attend a meeting with his manager who questioned why, if he had been absent from work on account of sickness, he had originally applied for annual leave. The employee responded he did not want to impact his manager and crew’s performance statistics for unplanned absenteeism.
Following an investigation, the company concluded that the employee’s behaviour was dishonest and unacceptable, that it was in breach of the employment terms and conditions, and the employment relationship was irreparably damaged. The employee was subsequently dismissed.
The employee filed an adverse action application, claiming that the termination was because he had exercised a workplace right to use his sick leave. The Federal Court dismissed the application. On appeal, the Full Federal Court upheld the dismissal, concluding that the employee’s dismissal was certainly connected with his taking sick leave but that did not necessarily mean he was dismissed because he took sick leave. The only operative and immediate reason for the dismissal was the manager’s belief that the employee had acted dishonestly by taking sick leave when he was not sick.
Interestingly, in his summation, Rangiah J stated that if the employee had utilised unfair dismissal provisions, his dismissal would have been regarded as harsh, unjust or unfair and he would have inevitably been reinstated.
This case emphasises that in determining general protections applications the Court will consider the subjective intention of the decision maker and the operative reason for the dismissal. Even where the reason for dismissal is connected with a prohibited reason, it doesn’t automatically follow that the prohibited reason was a reason for dismissal. It also highlights that even if employers believe they can avoid a post-termination claim in one jurisdiction, risks may still exist in another.
HR Legal can provide guidance on implementing and updating processes and procedures to address misconduct, as well as provide advice in conduct of investigations, disciplinary action and termination of employment.
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2)  FCA 265
This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.
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