Cleaner sacked by phone four days before her doctor cleared her

What happened

Ms Bennett, then about 56, was a permanent part-time cleaner in the New South Wales country town of Blayney. She had worked for Joss, a large contract cleaning business, for about five and a half years, cleaning mostly at Blayney Public School. Counting the cleaning companies that held the contract before Joss, she had cleaned that school for over 23 years.

In August 2016 she had surgery to remove spurs from her left foot and ankle, a more complex operation than one on her other ankle in 2014. She went on unpaid sick leave and sent in medical certificates, each covering a fixed period. In January 2017 her doctor confirmed she was not yet fit for her normal duties and certified her unfit until 13 February 2017.

On 16 January the employer's return to work coordinator rang her. She told him she had another appointment on 10 February, when she expected to know more about returning to work. He was content with that and asked her to keep him updated.

The phone call

On 6 February 2017 she received a call from the employer's Injury Department Manager and Internal Legal Counsel, who introduced herself at the start of the call. They discussed her health and her doctor's appointment later that week. During the call the manager formed the view that Ms Bennett could no longer perform the inherent requirements of her position, meaning the essential parts of the job, and told her that her employment was terminated.

A letter the next day confirmed she had been dismissed effective immediately for being unable to do the inherent requirements of a cleaner's job. It invited her to reapply for a cleaning position once she had full medical clearance. On 10 February her doctor certified her fit to resume normal duties from 14 February.

The legal test

Ms Bennett, represented by her union, applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). Under s 385 a dismissal is unfair only if it was harsh, unjust or unreasonable, and here that was the only question in dispute.

To answer it, the Commission must weigh the factors in s 387. The most important are whether there was a valid reason related to the worker's capacity or conduct, whether the worker was told of that reason, and whether the worker had a chance to respond before the decision. It must also consider the size of the business, whether it had human resources specialists, and any other relevant matter.

What the Commission decided

Commissioner Cambridge found there was no valid reason. On the employer's own evidence, the decision was made during the phone call, after Ms Bennett suggested she might not be cleared for a few more weeks. No doctor had said she could never return. Her certificates each covered a fixed period and gave no opinion that she was unable to do the job long term. He wrote that 'the capricious falsity of the employer's decision was blatantly exposed by the medical clearance to return to work provided four days after the dismissal'. No explanation was given for why the decision could not wait a few days.

The process was also badly flawed. The letter confirmed a decision already made, rather than warning that dismissal was being considered. Ms Bennett had no chance to respond. Had she known the employer was thinking of dismissing her, she could have obtained a prognosis from her doctor. The Commissioner found she 'was plainly denied natural justice', the right to be heard before a decision is made against you.

On the phone call itself he said: 'Employees are human beings and not human resources.' He added that telling someone they are dismissed by phone or other electronic means 'should be strenuously avoided', and that only very unusual circumstances could justify it. Joss was a large business (the union put it at about 800 full-time staff) with dedicated HR specialists, and the Commissioner said its size should have meant a much higher standard of procedure. There was also no evidence the employer had considered her length of service, age, location or limited skills.

The remedy

Under s 390 the Commission may order reinstatement or compensation, and compensation only if reinstatement is inappropriate. The employer argued Ms Bennett should have taken up its invitation to reapply. The Commissioner found that 'an injustice of the highest order' would stand if she did not get the remedy she sought, and ordered her reinstatement, with an order to restore lost pay.

What this means for you

If you are on sick leave and your employer contacts you about your future, put your medical position in writing and say when you expect to know more. An employer that relies on your 'inability to do the job' should have medical evidence for it and should give you a real chance to provide your own doctor's view first.

If you have been dismissed while unwell, consider getting advice early. The time limit to lodge an unfair dismissal application with the Fair Work Commission is 21 days from the dismissal.