The Federal Court has permitted an employee, who was dismissed after taking 10 months' leave to fight cancer, to proceed in a claim against his employer for adverse action. Elliot McGarva was employed by Enghouse Australia Pty Ltd but after contracting stomach and liver cancer had gone on leave for 10 months. During that time, he had exhausted his personal leave and had taken unpaid leave. At the end of that 10-month period, McGarva promised to return in two to four weeks. In response, Enghouse dismissed him.

Enghouse Australia argued that the adverse action provisions of the Fair Work Act 2009 (Cth) did not protect McGarva. Those provisions provide that an employer may not dismiss an employee who is temporarily absent on account of illness. However, Judge Driver of the Federal Circuit Court agreed that the duration of McGarva's illness took him outside the protection of the provision. Nonetheless, Judge Driver recognized that such action, although authorized by a Commonwealth or State law, could still constitute discrimination under s 351 of the Fair Work Act 2009 (Cth). Accordingly, McGarva was given leave to proceed. 

Lessons for Employers

The key takeaway from this case is that simply because an action is not prohibited under certain discrimination legislation does not mean that it is not prohibited under all relevant discrimination legislation. Accordingly, employers looking to dismiss employees who have taken extended sick leave should always seek advice before dismissing an employee on the basis that the three-month test in the Fair Work Act has been satisfied.

Andrew Berriman