Sacked five months in after sick days: court lets her claim proceed

What happened

Judith McCulloch started work with the Western Australian branch of the Transport Workers' Union on 19 May 2014. On 24 October 2014 she was dismissed, after 22.6 weeks in the job.

Her account, as set out in her statement of claim, was this. In late July 2014 she suffered a number of serious health problems. At about the same time her elderly father, for whom she was the primary family carer, suffered major setbacks in his health. By September her own health had deteriorated and she had to take time away from the office. Her doctor advised her to work four days a week for a while, until her health and her father's had settled. On 20 October 2014 she spoke to the Union's Acting Branch Secretary about her doctor's letter. Four days later her employment ended.

The Union saw the leave differently. Its records showed 15.5 days of absence between 19 May and 20 October 2014. It said she had also asked for time off because the roof had fallen in on her house, and to visit her father in a nursing home. In its response to her Fair Work claim, the Union was said to give, as part of its reason for the dismissal, that she had had "an excessive amount of time off work".

The claim and the law behind it

Ms McCulloch brought a general protections claim in the Federal Circuit Court in Perth. She relied on s 352 of the Fair Work Act 2009 (Cth): an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind the regulations prescribe.

Regulation 3.01 of the Fair Work Regulations 2009 (Cth) sets out those kinds. In short, the absence is covered if the employee gives a medical certificate or statutory declaration within 24 hours of the absence starting, or within a longer period that is reasonable in the circumstances; or complies with the notice and evidence rules in their award or agreement; or has given the evidence needed for paid personal leave. An absence of more than three months, or absences totalling more than three months in 12 months, is not covered unless the employee is on paid personal leave throughout.

Two features of general protections law help the worker. Under s 360 it is enough that the prohibited reason was one of the reasons for the dismissal. And under s 361, once the worker alleges it, the employer is presumed to have acted for that reason unless it proves otherwise.

The Union's bid to end the case early

Before trial, the Union applied for summary dismissal: an order ending the case without a full hearing because it had no reasonable prospect of success. Its argument was arithmetic. Under s 96, paid personal leave builds up at 10 days for each year of service. For a full-time employee, the Union said, that is 0.19 days a week, so by 4 June 2014 she had accrued just 0.38 days. Its table showed her 11.79 days in deficit by 20 October.

So, the Union argued, her absences could not have been paid personal leave, were not illness of a prescribed kind, and s 352 did not apply. Time off to look after her father was not her own illness at all.

What the Court decided, and why

Judge Lucev dismissed the Union's application. The test for summary dismissal is demanding. The power is used with caution; if there is a real issue of fact or law on which the parties' rights depend, the case should go to a hearing; and the court draws reasonable inferences in favour of the party resisting the application. The party asking for dismissal must persuade the court to make the order.

His Honour identified three arguments open to Ms McCulloch: that she had given the evidence needed for paid personal leave; that her doctor's letter was arguably a medical certificate given within a reasonable time; or that she was exercising a workplace right to unpaid carer's leave for her father under s 102, which would be protected by s 340. Any one of them, properly pleaded and proved, might succeed.

The Union's arithmetic did not settle anything. The 10 days in s 96 are part of the National Employment Standards, which are a minimum entitlement and "do not prescribe a maximum entitlement". The Union's own leave record called her absences sick leave, and there was "no positive evidence" that the leave was unpaid. Any weaknesses in her statement of claim could be fixed, so the Court gave her leave to amend it and adjourned the trial listed for 5 and 6 April 2018.

What this means for you

This was an early ruling, not a win at trial: it decided only that Ms McCulloch's claim deserved a hearing. We could find no later published decision, so the case may have resolved privately.

Still, it shows how the protections work. If you are dismissed while off sick, the evidence you gave matters, so keep copies of medical certificates and messages about your leave. Here the Court would not accept that a new employee's sick days were unprotected just because they exceeded her accrued balance. And time off to care for a sick family member can be a protected right of its own. If you think you were dismissed for being sick or caring for someone, consider getting advice early: a general protections dismissal claim must be lodged with the Fair Work Commission within 21 days.