The café was ordered to pay compensation, including $6,000 for hurt and humiliation, after ‘dismissing’ the employee for calling in sick due to the infection.

The recent Federal Circuit and Family Court decision clarifies the meaning of ‘temporary disability’ and protections for workers (including casuals).

Overview

The casual beverage attendant texted his manager during a Saturday shift that he was feeling unwell, asking to work a shorter shift the following day. The manager did not respond. The next morning the employee sent another text saying he would not be attending at all that day due to still feeling unwell. The manager responded to the text requesting they attend work regardless.

The manager then removed the worker from the Facebook group where they would usually receive notification of shifts. The manager also sent a message, which other employees could see, explaining that the worker would no longer be working at the café, and that there was “zero tolerance for not showing up to your shift”. Another employee sent a screenshot of that message to the worker.

On the Monday, the worker obtained a medical certificate confirming that he had a chest infection and was unable to work.

He filed a General Protections (Adverse Action) claim with the Fair Work Commission (FWC). The café did not respond to the claim, nor did it attend a conciliation conference. As a result, the matter proceeded to the Court for determination, where the café again failed to respond or attend.

Decision

The Court determined that the café took adverse action by removing the worker from the Facebook group (dismissing him), and that this adverse action breached discrimination protections under section 351 of the Fair Work Act 2009 on the basis of disability. The decision confirms that a disability may include a temporary illness, such as the worker’s chest infection.

Similarly, the Court also found that the business contravened section 352 by dismissing the worker based on his temporary illness-related absence, even though a medical certificate was not provided until the next day.

The worker was awarded compensation of six weeks’ wages for economic loss, payment for underpaid wages, and $6,000 compensation for hurt and humiliation. The total compensation was more than $7,300.

Learnings for business

This decision demonstrates the importance of recognising what protections are available to workers under the Fair Work Act 2009, including temporary absence due to illness.

A business must ensure managers or team leaders follow reasonable procedures and make reasonable enquiries before acting. This claim was avoidable had the business requested a medical certificate and allowed time for the worker to provide one. Taking time off due to illness is a workplace right and businesses risk significant penalties if they do not follow reasonable steps to manage the absence.

It is also critical for businesses to respond to FWC and Court actions, as decisions can be made and compensation awarded even if you ignore the matter. The worker’s claim is more likely to be accepted if businesses do not provide any alternative evidence in response.

How the Victorian Chamber can help

Workplace Relations Advice Line

Trying to deal with workplace issues alone but don’t know where to start? Before you take any action, call our Workplace Relations Advice Line.

Our experienced team are here to give you over-the-phone advice about human resources or workplace relations issues. Our Employer members have free and unlimited access to expert advice through the Workplace Relations Advice Line.

Fair Work representation

Managing claims in the Fair Work Commission (FWC) can be one of the most stressful and costly issues for your business. With help from our Workplace Relations consultants, you can rest assured our expertise is on your side.

Employment Termination

It is important to manage the termination of an employment relationship carefully to ensure you meet your legislative obligations, regardless of whether the employment contract is terminated by the employer or employee.

Wages and Entitlements

Is your business paying its employees correctly? When it comes to wages, awards and entitlements, ensure that your business complies with the law with professional support from our Workplace Relations Advice Line and consultants.