IN an interlocutory hearing for a pending adverse action case, the Fair Work Commission (FWC) has ordered a Queensland coal operator to reinstate a union delegate with full work duties after he was dismissed for taking sick leave after his application for annual leave was rejected.
Following a workplace practice at the Anglo Coal site in Moura allowing workers to cash out unused sick leave, a worker applied to take annual leave for two night shifts in April 2014.
The application was rejected, however, leading the CFMEU delegate to take sick leave instead.
Despite producing a medical certificate for the missed shifts, Anglo Coal dismissed the employee on May 12, stating in a letter that it was ‘clear that regardless of the company’s rejection of your leave application, you would not be in attendance for your rostered shifts’.
On grounds of contravention against workplace rights to take leave in cases of illness, the union filed a claim for adverse action and requested an interim order to have the employee reinstated until a final decision was reached by the Fair Work Commission.
Anglo Coal offered to maintain the employee on full salary until the hearing in July without assigning any work duties. However, Justice Collier contested the offer, referring to issues of social and psychological wellbeing established in precedents to justify full reinstatement.
In particular, J Collier referred to a 2011 case between the CFMEU and BHP Coal which took into account ‘the psychological impact which must necessarily attend the absence from the workplace, occasioned by idleness as a result of the termination, in circumstances where there is a serious question to be tried in respect of that termination’.
“Reinstatement in the Fair Work context means not only that the employee must be placed in a position no less favourable than he was prior to termination, but also that the employer must put the employee back to the performance of those duties which the employee was fulfilling before termination, and indeed provide work to be done by the employee of the same kind and volume as was being done before termination,” J Collier said.
Anglo Coal was ordered to reinstate the worker on the same terms and conditions that applied prior to his dismissal until the adverse action claim was determined at a final hearing.
To read the decision in full, click here.
Implications for Employers
This interlocutory hearing covers two important aspects of the Fair Work system relevant to AMMA members.
The first is in regards to workplace rights around sick leave, annual leave and employment termination.
While some organisations encourage employees to take annual leave in place of sick leave, incentivised with the option to cash in unused sick days, employers must remember that such programs do not detract from legislated workplace rights. Illness is rarely considered grounds for termination, especially when evidence such as a medical certificate is supplied.
The second issue concerns disciplinary proceedings established by employers. In this case, Anglo Coal raised concerns that reinstatement would undermine the worksite’s disciplinary policies in the face of other employees. While the Fair Work Commission rejected this fear as unfounded, resource employers are still encouraged to clarify disciplinary procedures within a company policy.
Termination can be a difficult and controversial road to navigate for resource employers, especially where rights and responsibilities are unclear. For information and advice on how to manage discipline within the workplace, speak to AMMA’s workplace relations experts by contacting your local AMMA office.