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September 2021

Cancer diagnosis triggers dismissal

Cancer diagnosis triggers dismissal

The Case

Tapping v Empress Diamonds Pty Ltd ATF Empress Discretionary Trust (2021)

Empress Diamonds Pty Ltd (Empress) employed Ms Tapping as a sales manager. During 2019, Ms Tapping was diagnosed with breast cancer. She required surgery, meaning she would be absent from work for a time.

Ms Tapping alleged that Empress terminated her employment once she told them about the diagnosis and requirement to have time off work. Ms Tapping alleged she was told “I can’t keep your job” and “you can’t come back”. Ms Tapping was not paid any notice or accrued untaken leave entitlements.

Ms Tapping commenced general protection proceedings, claiming that Empress had taken adverse action against her in contravention of the Fair Work Act 2009 (Cth) (FW Act). Ms Tapping claimed Mr Gabi Yitshaki, the owner and director of Empress, was accessorily liable for the breach.

Empress denied the allegations and the dismissal.

The Verdict

The Federal Circuit Court (FCC) found Ms Tapping’s employment was terminated by Empress on the basis that:

  • she had sent a contemporaneous email to her partner and Empress’ advisers, confirming she had been given “the sack” because she could not work and had cancer;
  • Empress had provided a Separation Certificate that confirmed the reason for employment termination was Ms Tapping’s breast cancer treatment and her need to have time off work; and
  • Empress advertised for Ms Tapping’s position shortly after her employment termination.

The FCC also found:

  • Ms Tapping’s employment had been terminated because she wished to exercise her workplace right to take personal leave and annual leave entitlements under the FW Act; and
  • Mr Gabi Yitshaki, the owner and director of Empress, was accessorily liable for the breaches.

A decision on compensation and penalties is pending.

The Lessons

An employee has a workplace right to use their personal/carer’s leave and annual leave under the FW Act. You cannot take adverse action against an employee for seeking to exercise that workplace right. Adverse action, in any form, including employment termination, may result in a general protections claim, compensation and penalties. Unlike unfair dismissal claims, general protections claims are not limited to a compensation amount equivalent to 6 months’ remuneration.

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