An employee was diagnosed with an aggressive form of breast cancer in 2020, when she informed her boss that she would need five weeks off to recover from her surgery.
The employer, a Melbourne based retailer, allegedly responded saying “I can’t keep your job” and she was subsequently let go.
Terminating a staff member for taking leave to deal with surgery and recovery is, unsurprisingly, a clear breach of the general protection provisions of the Fair Work Act.
In general protections claims, there is a reverse onus of proof which means that it is on the employer to demonstrate that the reason for termination for employment was not a prohibited reason – such as the employee exercising a workplace right to take sick and accrued annual leave due to illness.
This also shows the importance of employers to keep clear and detailed employee records.
While it’s prohibited to terminate a person due to an illness for three months in any 12 month period, it is acknowledged that extended absences can cause difficulty for employers, particularly small businesses. Therefore, employers should look at alternative resourcing models or staffing models to try and fill the gap rather than simply terminating the employment.
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