Fair Work awards compensation for employee sacked while on sick leave

The Fair Work Commission has awarded compensation to an employee of a Melbourne-based window business who was sacked while on sick leave and not given reasonable opportunity to contest the decision.

Darren Gadowski’s employment as a sales representative for EcoClassic Group was terminated in July 2013 due to alleged poor performance, following two meetings at which his performance was discussed in February and May 2013.

Gadowski had worked for the company, which produces energy efficient windows and doors, for 14 months.

However, Gadowski took the matter to the Fair Work Commission, arguing he was on sick leave when fired, and therefore should be protected from dismissal due to a temporary absence due to illness or injury.

Gadowski also argued he was not given an opportunity to contest the termination, previous meetings he had with his supervisors in relation to his performance did not make it clear his employment was at risk, and claims related to his sales records were related to the quality of the product and not his own personal performance.

The commission found EcoClassic had a valid reason for terminating Gadowski’s employment, upholding the company’s evidence of Gadowski not meeting his sales targets, and considering efforts by the managing director of the company, Ed Stelling, to encourage Gadowski to improve his performance.

But given Gadowski was on leave for a short period of time, the commission ultimately ruled his termination was “unreasonable”.

“Gadowski should have been given the opportunity to save his job and to see if he could have persuaded his employer to provide a further period in which to assist him,” said the commission.

The commission said given there was a valid reason for termination, it was not appropriate for Gadowski to be reinstated to his position.

Instead, EcoClassic was ordered to compensate Gadowski for two weeks’ work, which is the time the commission believes it would have taken for any further discussions about his performance to be concluded.

SmartCompany contacted EcoClassic Group but did not receive a response prior to publication.

M+K Lawyers partner Andrew Douglas told SmartCompany while it is permissible to terminate an employee while they are on sick leave, employers should proceed with caution.

This is especially the case when the employee is on leave for a short period of time. “Any allegations should be discussed when the employee returns to work,” says Douglas.

However, Douglas says it is different when the employee is suffering from a long-term illness. In these circumstances consideration must be given to the nature of the illness and the employer must give the employee appropriate or reasonable time to respond in writing.

In this particular case, Douglas says the court did consider the factors that led to the employee’s termination.

“The court found the dismissal was unreasonable. However, it only awarded compensation for two weeks as based on the employee’s performance, the termination process would have only likely continued for another two weeks had they not been on leave,” he says.

“The key issue is that what you can’t do, or can’t do easily, is start a termination process while someone is on sick leave,” says Douglas. “You need to take enormous care.”