By Charles Power

[Ed note: Have you ever rejected an employee’s request for annual leave, only for them to call in sick on the very same days?

In such cases, you might be tempted to discipline or dismiss the employee – but doing so could leave you facing various dismissal-related claims under the Fair Work Act 2009 (Cth) (FW Act), including:

• unfair dismissal claims, i.e. claims that a dismissal was harsh, unjust or unreasonable; and
• claims of unlawful adverse action in contravention of the general protections provisions.

Adverse action is any action that reduces the advantages an employee receives or expects to receive in their employment. It will be unlawful if it is taken for an unlawful reason, i.e. because someone has an attribute or engages in an act that is protected under the general protections provisions.

A recent case examined this exact situation. Charles Power explains below.

Until next time…]

Case Law: When an employee takes sick leave in place of rejected annual leave

In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2) (2015), the Court considered whether an employer had taken unlawful adverse action against an employee when it dismissed him for misconduct after he took a period of sick leave around the 2014 Anzac Day weekend.

The employee had previously applied to take annual leave on the days in question. When the employer rejected the application on business grounds, the employee threatened to use a medical certificate as a justification for taking the annual leave. The employee did, in fact, become sick on those days, although his employer genuinely believed he was fit for work.

Terminating the employment constituted adverse action within the meaning of section 342 of the FW Act. The employee claimed that the employer dismissed him for reasons including:

• he had exercised the protected workplace right to take personal (sick) leave (protected under section 340 of the FW Act); and
• he was temporarily absent from work due to illness or injury (protected under section 352 of the FW Act).

Under section 361 of the FW Act, the onus was on the employer to demonstrate that its reasons for terminating employment did not include any of the alleged prohibited reasons.

The person who made the decision to dismiss gave evidence that the reason for the dismissal was dishonesty, in that the employee:

• planned to take sick leave when he was not sick and threatened to use a medical certificate as a justification for taking annual leave which had been refused; and
• obtained the medical certificate to circumvent the employer’s refusal of his annual leave request, by persuading his doctor to issue a medical certificate in reliance on a description of symptoms.

The Court accepted this evidence that the employer had not taken the adverse action for the prohibited reasons alleged by the employee. Therefore, the employee’s claim failed.

This case shows the importance of giving a credible explanation for any action you take that is adverse to an employee.