Recently, an employee was successful in his discrimination claim against his employer. The Victorian Office of Public Prosecutions (Employer) dismissed Mr Anthony Grant (Employee) on allegations of poor attendance and performance.

In 2011, the Employee had received positive reviews of his work performance including a recommendation for a promotion. However in 2012, the Employee fell sick and was sporadic in notifying his Employer regarding his absences. The Employee also developed depression during this time of which the Employer was made aware. After a period of unpaid personal leave, the Employee provided medical clearance to return to work, but the Employer rejected the clearance.

The Employer issued the Employee with allegations of erratic work attendance and performance issues proceeded to dismiss the Employee in August 2012.

The Employee brought a claim for discrimination based off his medical condition.

The Court held that the Employee was successful on the issue of discrimination because:

  • The Employee was terminated for misconduct;
  • That misconduct arose wholly out of the Employee’s medical condition; and
  • The Employer was aware of that medical condition.

While this case should remind Employers that extra vigilance is always required in dismissing an Employee who has been diagnosed with a medical condition, Employers ought not to forget the onerous effects of the reverse onus of proof provision in the Fair Work Act. In light of this, Employers should always seek proper legal advice prior to undertaking performance management and/or dismissing an employee.

Written by
Jonathan Mamaril
Principal & Director, NB Lawyers – the Lawyers for Employers
07 3876 5111
jonathanm@nb-lawyers.com.au

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