The Facts

Employee diagnosed with cancer and goes on sick leave

A man was employed by a company on a full-time basis as a channel manager.

He was diagnosed with stage IV stomach and liver cancer in August 2012. From that time until his dismissal in July 2013, the employee remained on sick leave. He was paid sick leave until that ran out and after that was on unpaid leave.

The employee kept his employer updated of his progress throughout his period of absence from the workplace.

Employee seeks to return to work and is terminated by employer

In June 2013 the employee was feeling better and commenced discussions with his manager about returning to work. On 20 June 2013 the employee sent his manager an email confirming that he was looking at a possible return to work within two to four weeks.

The company responded by sending the employee a letter which terminated his employment due to his ten-month period of absence. The letter explained that during these ten months there had been extensive changes in the business and the market, and that this gave the company "no choice" other than to terminate his employment.

The employee brought proceedings against the employer, alleging discrimination on the basis of disability. The employer rejected this allegation, claiming that the employee had been lawfully dismissed under section 352, the "Temporary Illness" section of the Fair Work Act.

case a - The case for the employee

case b - The case for the employer

  • Due to having cancer, I had a disability as defined by the Disability Discrimination Act 1992.
  • My dismissal in July 2012 amounted to discrimination against me on the basis of this disability, which is an "adverse action" under the Fair Work Act.
  • Adverse action is not permitted under the General Protection provisions of the Fair Work Act, which provide that employees are protected from dismissal if the decision to dismiss is made for a discriminatory reason.
  • Throughout my period of absence from the workplace, I kept my employer continuously updated about my progress. It was not until I commenced discussions about returning to work that I was abruptly dismissed.
  • Just because I was absent from work for ten months due to illness does not exempt my employer from having to abide by disability discrimination legislation.
  • According to the Fair Work Regulations, a temporary illness is an illness that lasts less than three months or is an ongoing occurrence where each day of absence adds up to less than three months over a 12-month period. Where an illness extends beyond that time, an employer is expressly authorised to dismiss the employee.
  • Clearly this was not a temporary illness, so our dismissal of the employee was not unlawful.
  • The General Protection provisions of the Fair Work Act only apply where the actions taken by an employer are not authorised under any act of the Commonwealth or states.
  • The action we took in dismissing the employee was an authorised action under the Fair Work Act, which means we did not contravene the General Protection provisions on the basis of discrimination due to disability, as the employee claims.

So, which case won?
Cast your judgment below to find out

Vote case A – the case for the employee
Vote case B – the case for the employer

Emily Wittig
Employment law
Stacks Collins Thompson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.