The Federal Circuit Court has allowed an employee to proceed with an adverse action claim after he was dismissed following 10 months of personal leave. Even though the employee had been absent from work for a period longer than the permitted 3 months, the court still found that the termination was unlawful due to the application of anti-discrimination laws.

The employee had been absent from work whilst ill with stomach and liver cancer. The employee kept the employer informed about his progress at all times during the absence. After 10 months of leave, which was largely unpaid due to the exhaustion of paid personal leave, the employee emailed the employer to inform them that he was able to return to work in the next 2 to 4 weeks. The employer responded with a termination letter. It was argued that dismissal was authorised because 10 months’ absence was long enough to place the employee outside of the reach of the adverse action provision, which prevents dismissal due to temporary illness of less than 3 months.

Justice Driver disagreed with the employer’s argument. He held that although the adverse action provision was not applicable to the extended absence of the employee, the employer’s action could “still constitute an unlawful dismissal under Commonwealth or state anti-discrimination legislation”.

Key points for employers:
 

  • Employers must consider all relevant employee entitlements and corresponding employer obligations, including anti-discrimination laws, when deciding whether termination of an employee is justifiable and appropriate in a particular set of circumstances.

A link to the decision can be found here: McGarva v Enghouse Australia Pty Ltd[2014] FCCA 1522 (15 July 2014).