Was worker pressured to return to work early during illness?
The Fair Work Commission (FWC) recently dealt with a worker’s claim that he was fired after exercising his right to take sick leaves while suffering a long-term illness.
Jack Paisley filed a claim before the FWC to address a general protections dispute that involved his alleged dismissal. He argued that hat Western Highway Investments Pty Ltd violated several provisions of the FW Act by unlawfully terminating his employment.
Meanwhile, the employer opposed his application by arguing that Paisley resigned of his own volition.
Worker faces health issues
Paisley held the position of a sales consultant at the company's car dealership starting from July 2022 until April 2023.
In February 2023, he faced health issues that urged him to take personal leave. During this period, he was contacted multiple times by Brad Hopkins, the dealer principal, who inquired about the reasons for his absence and the expected date of his return.
Paisley said he felt "pressured" to return to work earlier. And so, he returned to work from 13 March to 18 March 2023.
His health deteriorated again, leading to another period of illness. On 23 March 2023, Hopkins contacted him and said his ongoing absence was negatively impacting the business.
During this conversation, Hopkins suggested that "it would be best for both of them if they parted ways." He proposed that Paisley consider resigning in exchange for three weeks' pay.
Considering this offer and wanting to make an informed decision, Paisley requested that the company provide the offer in writing. However, despite his email request, he did not receive a response from Hopkins.
According to Paisley’s evidence, he said that he did not know "how long his illness might continue" and that Hopkins had "indicated" to him that his employment could not continue in these circumstances.
Paisley said he eventually "acceded to (his) demand" and "decided to resign."
On 23 April 2023, Paisley sent an email to the company stating:
“On recent events, I consider I am being forced to resign, therefore, I wish to advise I am resigning effective immediately due to a series of adverse actions taken against me whilst on sick leave, in particular, Brad Hopkins asking me if I would resign in exchange for 3 weeks leave (sic), and this was being offered on the basis I had exercised my workplace right to take personal leave whilst unwell which was fully supported by medical certificates,” the worker said.
“Further pressure exerted on me to return the company car whilst unwell further demonstrates the continued adverse action taken against me due to being on sick leave, and ongoing pressure and lack of genuine support by management in my time of illness has caused me great distress,” he added.
Communicating with the HR manager
Gustav Roos, the company’s human resources manager, said that on 5 April 2023, he spoke with Paisley on the phone and asked him how he was. He requested that Paisley meet with him to discuss his recovery, but Paisley replied that he did not want to do this and that he would “just keep taking sick leave.”
Roos added that on 12 April 2023, Paisley reached out to him via email, seeking clarification about his commission payments. In response, Roos assured Paisley that said payments had been settled.
On 14 April 2023, Roos wrote to Paisley, explaining that the company needed him to return the company car due to a customer's interest in it. Roos assured Paisley that an alternative car would be provided upon his return to work.
Additionally, the HR manager pointed out that Paisley had run out of sick leaves and offered him unpaid sick leave, requesting medical certificates to justify his absence. Roos also reminded Paisley to complete his police check, marking it as the sixth time the request had been made.
The worker once again objected to the company’s car return, saying that it breached his employment agreement. He also emphasised that the situated has caused him “distress.”
‘Pressured to resign’
Paisley argued that he was forced to resign because of the company’s actions. He said that Hopkins’ offer that he resigns was “effectively a demand or a form of pressure that he do so, and that the reason for this had been the company’s dissatisfaction with his continued absence on sick leave.”
He added the company’s offer “had not been retracted and remained in place until he felt compelled to accept it.” Paisley said that the company “had made it plain to him that it would not tolerate his continued absence on personal leave, but that he could not say how long his illness would persist.”
He said that the company’s “continued request for him to meet and discuss his absence were unacceptable” and “placed pressure on him to resign at a time when he was sick, as did its demand that he return the company vehicle to which he was entitled.”
‘Free to accept or reject’ company’s offer
Meanwhile, the company submitted that Paisley had “resigned of his own free will” and that it was “fanciful” to suggest that he was forced to resign.
It said that Paisley “could simply have continued in his employment” and “could have accepted Roos’s offer to speak with him” or “could also have done the things that Roos had asked of him.”
It added that “although Paisley had been given a direction by Roos which he did not comply with, the company had not taken any disciplinary action against him.”
The employer argued that the company “had, in fact, supported Paisley during his illness.”
“He had exhausted his paid sick leave but was permitted to continue his absence on unpaid leave. The company’s offer to Paisley on 23 March 2023 that he resign in exchange for three weeks’ pay was merely a proposal which he was free to accept or reject,” the employer said.
‘Reasonable’ company conduct
In its decision, the FWC said that it rejected Paisley’s argument “that by contacting him while he was on sick leave, the company placed inappropriate pressure on him to return to work, or to resign.”
“[The employer’s] efforts to contact Mr Paisley were reasonable. Contrary to Paisley’s submission, he was not subjected to coercion or duress,” the Commission said.
“The company did not ‘indicate’ to him that he could not continue to be absent. It told him that he could take unpaid sick leave and that he was required to provide medical certificates, which he did.”
“If Paisley thought that the company would probably not allow him to continue on unpaid sick leave indefinitely, he was probably right. But that did not mean that he was forced to resign,” it added.
Thus, the FWC said that the employer’s conduct “[does] not constitute a situation of compulsion” where the worker was intimidated or threatened. “He could have chosen to remain in his employment. He chose to resign,” the Commission concluded.
