Large Childcare Employer’s Failure to Inform Itself of Obligations to Injured Worker “Disappointing” and “Disturbing”: FWC

A childcare employer with a national footprint unfairly dismissed an injured worker, the Fair Work Commission has found.

The applicant in the matter was issued with a show cause letter on 17 July 2020 after allegations were received from other staff members.  Following the applicant’s response to the show cause letter, the employer wrote to her on 30 July 2020 to say it would take no further action on the matter.

Soon after, the applicant told the FWC, she was working in a float role across various rooms in the centre when an issue was raised about her back pain.  The applicant wanted to stay in the older children’s room as it required less carrying.  The applicant had a discussion with the centre director and then a phone consultation with her GP.  A medical certificate was supplied dated 9 September 2020, with the doctor saying the applicant had chronic lower back pay which had gotten worse in the past year and that she would benefit from working with children in the 3-5 year age group.  The applicant told the FWC she was asked by the employer to stop work immediately and to attend a medical assessment.  The assessment was completed two days later by a Rehabilitation Consultant.  Among other things, the assessment recommended no lifting above 10kg.

Dismissal

The employer discussed the assessment with the applicant on 14 September 2020 and on the same day, sent the applicant an email setting out the medical restrictions from the assessment.  The email said the employer would need to review the ability to provide a job role and duties that met the restrictions.  It offered the applicant the chance to provide any suggestions she had on the work that could be performed within the restrictions.  There was some back and forth on the duties that could be performed over the next couple of days.  But on 18 September 2020, the applicant was sent a letter terminating her employment on the basis that it appeared she could only safely perform four tasks: washing dishes, outdoor activities, observing children during activities and completing observations/stories.

FWC outcome

The applicant argued in the FWC that after the employer failed to dismiss her based on the allegations in the show cause letter, it simply found another way to do so based on her capacity.  On the issue of the show cause letter, Commissioner Hunt of the FWC said it was “an extraordinary thing to have occurred; for the Respondent to have completely abandoned the inquiry, noting there were 16 allegations made against [the applicant].”  The Commissioner went on to say that the issuing of the show cause letter was “spiteful and vindictive.”

The Commissioner accepted that the applicant complained to the centre director that she was experiencing back pain when spending time in a room with babies aged from 1.5 years.  The applicant was “clearly not working pain-free” and her preference was to work in the older children’s room with less need to carry the children.  The Commissioner found the applicant was extremely naïve to think she could obtain a medical certificate from her GP to declare that it would be best if she worked in the older children’s rooms as it indicated she was not fit to work in the younger children’s rooms and instantly flagged a concern to the employer.  The Commissioner also accepted that the functional assessment meant the applicant was unable to safely perform the inherent requirements of the role and it would have been appropriate to stop the applicant from caring for children at the centre because of the risks involved.

The applicant had exhausted her entitlement to paid personal/carer’s leave and did not have much annual leave.  The Commissioner found the employer, had it had proper regard for the requirements of the Fair Work Act, would have required the applicant to proceed onto unpaid personal leave, rather than dismiss her.  The Commissioner referred to section 352 of the Act which prohibits an employer from dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the Fair Work Regulations.  The applicant was at the date of her dismissal temporarily absent from work because of an injury of a kind prescribed by the Regulations.  The Commissioner said:

Parliament has determined that employees must not be dismissed within three months of being on unpaid leave because an employee has a temporary illness or injury. This is entirely fair, as employees will, at various stages of their working life have to take time off work to deal with various illnesses or injuries.

Employees should not lose their job if they have to take six weeks off work to mend a broken bone. Not all employees will have a balance of six weeks of paid personal leave to cover such a scenario. Nor should employees lose their job if they are having surgery such as a hysterectomy, or retina attachment, or are recovering from hepatitis. A three month protection is in place for very good reason.

Disappointingly and disturbingly, the Respondent was not aware of the obligations within the Act not to dismiss an employee on unpaid leave within this important timeframe. It blindly determined that she could not, in mid-September 2020, perform the inherent requirements of the role, or any available role, and therefore must be dismissed.

Commissioner Hunt went on to note that it is a matter for a court to decide if there is a breach of section 352 of the Act, in the event there was an application under section 365 (i.e. a general protections application).  While the Commissioner was determining an unfair dismissal claim under section 394 of the Act, the Commissioner said it was not available to the Commission to “ignore” the protections afforded to employees under section 352 in deciding an unfair dismissal claim. 

In an explanation that many employers will find helpful, the Commissioner discussed the effect of the temporary absence protection in section 352 in the following terms:

In many conferences I have with parties, I liken the protection at s.352 of the Act to a red light, prohibiting dismissal due to the injury or illness within three months of the period of unpaid leave commencing. It is not then an automatic green light to dismiss once the three months have passed; however, it is no longer a red light. Discussions should occur at around that time so that once the period of three months has passed, and if the employer is determined to dismiss on account of not being able to hold the position for the injured or ill employee, the employee may then have some input into the decision.

Some employers will hold open an injured or ill employee’s role for them well beyond three months of unpaid leave. For example, if an employee is battling cancer, many employers will not count down the period to three months and then terminate the employment once the protected period has been reached. Employees may be in a position to inform their employer that their treatment or prognosis is good, and they may just need a further, short period of time to recover and return to pre-injury or pre-illness duties. Again, reaching the period of three months is not an automatic right to dismiss; it is simply no longer a prohibition.

Commissioner Hunt determined the applicant was unfairly dismissed and ordered the payment of compensation amounting to eight weeks’ wages.

Rezaeifard v Green Leaves ELC Pty Ltd T/A Green Leaves [2021] FWC 5905