Which case won?

casea
The case for the employee
  • Due to having cancer, I had a disability as defined by the Disability Discrimination Act 1992.
  • My dismissal in July 2012 amounted to discrimination against me on the basis of this disability, which is an “adverse action” under the Fair Work Act.
  • Adverse action is not permitted under the General Protection provisions of the Fair Work Act, which provide that employees are protected from dismissal if the decision to dismiss is made for a discriminatory reason.
  • Throughout my period of absence from the workplace, I kept my employer continuously updated about my progress. It was not until I commenced discussions about returning to work that I was abruptly dismissed.
  • Just because I was absent from work for ten months due to illness does not exempt my employer from having to abide by disability discrimination legislation.
caseb
The case for the employer
  • According to the Fair Work Regulations, a temporary illness is an illness that lasts less than three months or is an ongoing occurrence where each day of absence adds up to less than three months over a 12-month period. Where an illness extends beyond that time, an employer is expressly authorised to dismiss the employee.
  • Clearly this was not a temporary illness, so our dismissal of the employee was not unlawful.
  • The General Protection provisions of the Fair Work Act only apply where the actions taken by an employer are not authorised under any act of the Commonwealth or states.
  • The action we took in dismissing the employee was an authorised action under the Fair Work Act, which means we did not contravene the General Protection provisions on the basis of discrimination due to disability, as the employee claims.

So, which case won?

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Case A won. You were right!

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a50%
b50%

Expert commentary on the court's decision

“The court determined that while the temporary illness provisions exist to allow an employer to dismiss an employee who has been sick for longer than three months, it does not extinguish every avenue for claims under other forms of adverse action, for example discrimination.”
Court finds in favour of employee

In McGarva v Enghouse Australia Pty Ltd [2013] FCCA 1565, the court ruled in favour of the employee, Mr McGarva, in an interlocutory application that looked at whether the temporary illness provisions could prevent a finding of any other adverse action.

The court determined that while the temporary illness provisions exist to allow an employer to dismiss an employee who has been sick for longer than three months, it does not extinguish every avenue for claims under other forms of adverse action, for example discrimination.

The court found that the fact that an action taken by an employer is authorised under the Fair Work Regulations (3.01, “Temporary absence – illness or injury”) does not mean that a claim cannot be made under the Fair Work Act (section 351, “Discrimination”) if the action is in breach of the Disability Discrimination Act.

In this case the matter was referred to mediation on the question of discrimination on the basis of disability.

Implications for employers

Employers must be very careful in dismissing an employee for a non-temporary illness. The temporary illness provision in the Fair Work Act and Fair Work Regulations does not provide a “silver bullet” rebuttal to all other forms of adverse action.

A decision to terminate an employee under the temporary illness provision should be thoroughly discussed with a lawyer before any communication is commenced with the employee.

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