|
When can absent employees be dismissed?
|
| Karl Rozenbergs, Partner and Leonie Green, Lawyer |
The recent Federal Magistrates’ Court decision of Lee v Hills Before and After School Care (“Lee’s case”) suggests that it may be unlawful to dismiss an employee while they are receiving workers’ compensation payments.
Overview of decision
Lee’s case involved an employee who claimed that her employment was unlawfully terminated pursuant to s659(2) of the Workplace Relations Act 1996 (Cth) (“the Act”) on the grounds that she was on a temporary absence from work because of an illness or injury.
The Workplace Relations Regulations 2006 (“the Regulations”) provide that an absence is not a temporary absence if:
- the employee's absence extends for more than three months unless the employee is on paid sick leave for the duration of the absence; or
- the total absences of the employee, within a 12 month period, whether based on a single or separate illness or injury, extend for more than three months, unless the employee is on paid sick leave for the duration of the absences.
The employee in Lee’s case had suffered a workplace injury and was absent from work for more than three months within a twelve month period. During the absence, the employee was receiving workers’ compensation entitlements.
The employer was seeking to have the case dismissed on jurisdictional grounds on the basis that the absence was not a temporary absence under the Regulations.
The issue before the court was whether the term “on paid sick leave” included periods off work in which the employee was receiving workers’ compensation payments.
In order to answer the question, the court looked at the intention of the drafters of the ILO Termination of Employment Convention as there were no relevant guiding authorities on the matter.
On the basis that there was nothing in the preparatory work of the drafters which suggested that an employee absent on a workplace injury should be excluded from the operation of the Convention, it found that ‘on-paid sick leave’ included periods off work on workers’ compensation.
Implications
Lee’s case provides another layer of protection for injured workers.
Prior to Lee’s case, an employer could rely upon the Regulations to terminate an employee who had been off work for more than three months in a 12 month period and who had not been entitled to be paid sick leave by the employer for the duration of his or her absences.
However, in light of the decision in Lee’s case, if an employee has been receiving either paid sick leave from their employer or statutory workers’ compensation payments in respect of all leave taken in the last 12 months, the employer cannot terminate the employee’s employment without risking an unlawful termination claim pursuant to s659(2) of the Act.
Lee’s case may be appealed and subsequently overturned, however until that happens, it remains the current authority on the interpretation of paid sick leave and workers’ compensation entitlements for the purposes of the Act and the Regulations.
FURTHER ENQUIRIES
