The Federal Circuit Court has recently ordered a transport operator to pay close to the maximum penalty for summarily dismissing the employee after he took carer’s leave to take his daughter to a medical appointment with a specialist.
The employee was employed as a truck driver and on Friday 6 August 2013, advised his employer that he needed to take time off work on the following Monday to take his daughter to a specialist medical appointment. The employee said he could work a half-day but needed to finish before 1pm in order to attend the appointment. The employer refused his leave request and informed him that he was required to attend work for the entire day.
On Sunday 8 August 2013, the employer sent the employee a text message setting out his work schedule for Monday. The employee replied by saying that he would not be attending work due to his carer’s responsibilities. The employer then threatened to dismiss the employee if he did not show up for work on Monday morning.
The employee did not attend for work on Monday, instead attended medical appointments with his daughter who was certified as being unwell and requiring care. As a consequence, the employer summarily dismissed the employee by text message.
Following the dismissal, the employer continued to verbally abuse and threaten the employee via text message and phone conversations and made derogatory comments about the employee’s wife and daughter. The employer was also found to have made threats against the employee’s lawyer after legal proceedings had been instituted.
Breaches of the Fair Work Act
The employee brought proceedings against the employer for breaches of the ‘general protections’ provisions of the Fair Work Act 2009 (Cth) (Fair Work Act) for taking adverse action against him and for discrimination, as a consequence of his exercising his right to take carer’s leave.
Under the Fair Work Act, during a permanent employee’s service with an employer, the employee accrues an entitlement to take accrued paid carer’s leave where an immediate family member or member of the employee’s household requires care or support because of an illness, injury or unexpected emergency affecting the immediate family member or member of the employee’s household. For full-time employees, the entitlement accrues at the rate of 10 days per year (to be taken as personal (sick) or carer’s leave).
In addition, all employees are entitled to take 2 days of unpaid carer’s leave for each occasion when an immediate family member or member of the employee’s household requires care because of an illness, injury or unexpected emergency affecting the immediate family member or member of the employee’s household.
Federal Circuit Court decision
The employer did not dispute that he had breached the Fair Work Act by terminating the employee, and the case focussed on the appropriate penalty that should be ordered.
The Judge found that the employer’s conduct fell into “the most serious of categories”, describing the conduct as “blatant and disgraceful”. The Judge ordered the employer to pay a pecuniary penalty of $10,000 for breaching the Act as well as a further $10,000 damages to the employee for non-economic loss (pain, suffering, hurt, distress, and humiliation).
Notably, the pecuniary penalty of $10,000 was only $200 less than the maximum penalty that can be ordered where the contravention is committed by an individual – in this case the employer was operating as a sole trader rather than through a corporation. The maximum penalty payable by a corporation per contravention of the ‘general protections’ provision is $51,000.
What does this mean for employers?
In light of the significant penalties that may be imposed, employers should ensure that they understand:
- the rights afforded to employees by the Fair Work Act in relation to taking personal/carer’s leave; and
- their obligations under the Fair Work Act, particularly regarding general protections provisions.