Can a company legally sack an employee who has been ill for ten months? Which case won?
Employee diagnosed with cancer and goes on sick leave
A man was employed by a company on a full-time basis as a channel manager.
He was diagnosed with stage IV stomach and liver cancer in August 2012. From that time until his dismissal in July 2013, the employee remained on sick leave. He was paid sick leave until that ran out and after that was on unpaid leave.
The employee kept his employer updated of his progress throughout his period of absence from the workplace.
Employee seeks to return to work and is terminated by employer
In June 2013 the employee was feeling better and commenced discussions with his manager about returning to work. On 20 June 2013 the employee sent his manager an email confirming that he was looking at a possible return to work within two to four weeks.
The company responded by sending the employee a letter which terminated his employment due to his ten-month period of absence. The letter explained that during these ten months there had been extensive changes in the business and the market, and that this gave the company “no choice” other than to terminate his employment.
The employee brought proceedings against the employer, alleging discrimination on the basis of disability. The employer rejected this allegation, claiming that the employee had been lawfully dismissed under section 352, the “Temporary Illness” section of the Fair Work Act.