Employment Law – Background
In the recent case of Bennett v Colin Joss & Co P/L t/a Joss Facility Management, the Fair Work Commission ruled that an employer’s reason for dismissing a cleaner on sick leave was “intemperate, illogical and devoid of compassion”.
Employment Law – Facts
- Ms Bennett was employed as a cleaner by Joss Facility Management for approximately 5 ½ years on a permanent part-time basis
- In 2014 she took 10 weeks unpaid sick leave for foot surgery. Again, in August 2016 she took unpaid sick leave for surgery on the other foot which required a long recovery period
- Ms Bennett provided ongoing medical certificates which stated she was unfit for work for fixed periods of time
- In December, the company required Ms Bennett to complete a Functional Job Description. In January her treating doctor also did so, and provided a certificate stating she was unfit for work until 13 February
- Ms Bennett was contacted by the company on 16 January, where she stated she had a doctor’s appointment on February 10 where she expected that her return to work date would be clarified
- However, on 6 February, before the scheduled doctor’s appointment, the company’s injury department manager and legal counsel, phoned Ms Bennett informing her that her employment was terminated as she could not perform the inherent requirements of her position. They had no medical advice to support this decision.
- Three days later, Ms Bennett attended her scheduled doctor’s appointment and was given a certificate of fitness to resume her duties on 14 February.
Employment Law – Decision
The Fair Work Commission:
- Held that the reason given for the dismissal was “erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical, intemperate and devoid of compassion”
- Believed that the falsity of the employer’s decision to dismiss Ms Bennett was “blatantly exposed by the medical clearance to return to work provided four days after the dismissal” and that this decision was “extraordinarily hasty”
- Stated that the dismissal included “very regrettable procedural deficiencies” which denied Ms Bennett “natural justice”, as Ms Bennett was not provided the opportunity to respond
- Noted that termination of employment by telephone or other electronic means should be strenuously avoided
- Concluded reinstatement was an appropriate remedy
The decision is available for you to read through the hyperlink:
Employment Law – Tips for Employers
Our Matthews Folbigg Workplace Solutions employment law team recommends employers:
- Ensure terminations are conducted in a procedurally fair manner by ensuring that employees are given the opportunity to respond
- Be cautious of acting prematurely, by ensuring that you have adequate medical advice to support the reason for a termination
- Be wary of the implications of terminating employees by telephone or other electronic means
- Seek the advice of an employment lawyer prior to considering the termination of an employee’s employment.
- Ensure compliance with all applicable employment laws with respect to awards, enterprise agreements and company policies and procedures
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.