The employee was unfairly terminated during her treatment
In a recent decision, the Federal Circuit Court of Australia considered an applicant terminated from her employment after receiving a breast cancer diagnosis. The applicant worked for a diamond wholesale company. During proceedings, the Court referred to two respondents – the first being the company and the second being the company’s owner.
In April 2019, the applicant received a diagnosis of aggressive breast cancer. Over the next few weeks, she attended work periodically as she awaited a date to undergo surgery. On 8 May, the applicant had a conversation with the respondents, where she informed them that her surgery was scheduled for the following week.
The applicant asserted that, after explaining she would need several weeks without work to recover, the second respondent stated that he was “giving [her] the sack”. The second respondent denied the applicant’s submission that he terminated her employment during this conversation.
Ultimately, the Commission preferred the applicant’s evidence over the second respondent’s for several reasons. Firstly, the applicant sent an email to the respondents’ accountant directly after the conversation, stating that the second respondent had terminated her because of her inability to work during her cancer treatment.
Secondly, the applicant produced evidence of a Separation Certificate signed by the second respondent, which stated the reason for separation as that the applicant could no longer keep her position due to breast cancer treatment. Although the second respondent attempted to raise the argument that his inability to read written English precluded him from understanding the content of the Certificate, the Court found that the second respondent was aware that the word “separation” meant that the applicant’s employment had ended.
Thirdly, the applicant submitted evidence of a job advertisement published by the respondents in the days following the conversation. The job advertisement did not indicate that the position was temporary and listed similar tasks to those performed by the applicant.
Given these reasons, the Court was satisfied that the second respondent terminated the applicant’s employment during their conversation on 8 May, likely because of his panic at her taking a lengthy period of leave.
With this, the Court found the dismissal was unlawful. In addition, it found that the respondents contravened several other provisions, including a failure to provide the applicant with adequate notice of termination or payment in lieu and a failure to pay the applicant annual leave loading during her employment.
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