Employers should be careful of the actions they take while an employee is on a period of authorised leave, as demonstrated in a recent FWC unfair dismissal case.

A 77 year old housekeeper was on four weeks’ sick leave relating to a longstanding work-related injury when her employer notified her that it was not going to renew her employment contract.

The housekeeper then claimed unfair dismissal and said that her employer told her she was too old to return to work.

She also told the FWC that she was employed on a one-year fixed term contract in 2005, which was ‘tacitly renewed’ on each anniversary date of her contract taking effect. This meant that her dismissal took effect midway through her 2015-2016 contract.                     

Her employer submitted that it never terminated her employment.  Instead, it argued that the contract expired when the housekeeper indicated that she couldn’t resume her normal duties because of her injury.  As such, it considered her period of leave as giving notice.

The FWC found there was no evidence to show the housekeeper resigned and that the housekeeper’s employment was terminated at the initiative of the employer.

It also found that there was no valid reason for the dismissal.  DP Kovacic noted that while the employer didn’t contend that the worker’s age or use of sick leave were reasons for dismissing her, neither of these factors would have constituted a valid reason.

The FWC ordered the employer to pay the housework eight months’ wages because it was likely she would have stayed employed until her 2015-2016 expired.

This decision is a reminder to employers that they can’t treat an authorised absence such as sick leave as an intention to end the employment relationship.

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