Unfair dismissal finding for sick employee
A RECENT Industrial Relations Commission decision serves as a warning to employers to inquire about workers’ illnesses before dismissing them.
In this case, the worker had been diagnosed with a depressive illness and received psychiatric treatment.
Between March and November 2002, the worker had 30 days off work. He claimed the employer was aware of his situation.
In November his depressive illness returned.
The worker claimed he was not capable of telephoning his employer to advise of his condition.
The worker and the employer agreed in a meeting that he would be given another chance and would return to work the following Monday.
However, the worker did not attend work on the Monday, nor did he telephone the employer to inform that he was still unwell.
The employer then dismissed him by letter.
The commission was satisfied the worker suffered from episodes of depression and that the employer must have been aware he was attending a mental health service.
It found the employer made no inquiry as to the seriousness of the worker’s condition.
In addition, the employment contract provided for a disciplinary procedure in this situation that the employer did not follow.
The commission decided that even though the worker should have done more to provide his employer with the necessary evidence of his illness, the employer should have put itself on inquiry.
The employer did not provide him with an opportunity to respond to the reasons for its disciplinary action or decision to dismiss. It was therefore found that the worker was unfairly dismissed and compensation was awarded.
Carla Paratore, solicitor 9228 6940
Ian Curlewis, partner
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