There are currently no laws protecting employees from being fired/dismissed during leave
Many ask the question, “Can I get fired during the course of leave?” There have been instances where employees have escalated this very question only to find out that there are no current lawas that specifically protect employees from being fired or dismissed during leave.
Employee Fired / Dismissed During Leave – Case Example
Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – termination payment not made on date of dismissal.
In terms of the employment termination, “Ms Ryan was terminated by the Pharmacy, but she was not paid a termination payment until February 25, 2019”. This was because it was paid under Ms Ryan’s regular pay schedule. Wilcox J stated these in Siagian V Sanel Pty Ltd (1994), 122 ALR333 at p 355
“It seems to be that in the absence evidence of a contrary intent, it should generally be inferred from the employer that the termination was intended to take effect immediately. This conclusion is not only consistent with the true meaning of “payment in lieu notice”, but also follows common sense. If an employer wishes to terminate an employee’s service and is willing to give notice but not require the employee to work, they will most likely want to end the relationship right away. The employer has no incentive to keep the relationship alive if the employee does not work. There is also the risk that the employer will have to pay for employment-related costs such as workers’ comp insurance, payroll tax, and liability for leave payments. Employers also run the risk of a new burden being imposed on the employee during this period.
[59] A Full Bench in Ayub, [19] stated termination will take effect when the employee is notified. However, it may be subject to additional requirements such as the requirement that the employee has been paid the amount in lieu notice. [my emphasis]. The Full Bench does not imply that the payment must have been made on the same day as the date that was notified to make that date the termination date. It is permissible to decide when payment was made. However, it does not necessarily have to be made on the same date every time.
[60] Under these circumstances, the termination payment was made at the Pharmacy’s next payment date. Given the circumstances, it is not remarkable. I also don’t agree with Ms Ryan’s conclusion that she was terminated on 25 February 2019.
Review of Modern Awards & Termination Payments
[61] A Full Bench decision in 4 year review of modern awards-Payment of wages [2018] FWCFB3566 at [119] was made. It was a provisional opinion that the Pharmacy Industry Award 2010 and 85 other modern awards would now be modified to include the following model term.
“X. Payment on termination of employment”
(a) An employer must pay employees within 7 days of the date on which their employment ends.
(i) The employee’s wages for any incomplete or complete pay period ending on the day of termination.
(iii) All other amounts due to an employee under this award or the NES.
(b) The obligation to pay wages or other amounts as described in paragraph (a), is subject to an additional order by the Commission and the employer to make deductions authorized under this award and the Act.
Notification 1: Section 217(2) of the Act states that an employer cannot terminate an employee’s employment without giving the employee notice for a minimum period or paying the employee a payment.
Note 2: The Commission can make an order to delay the payment required under clause X. The Commission could, for example, delay the obligation to pay redundancy payments if an employer applies under section 120 to the Act to lower the amount of redundancy compensation an employee is entitled under the NES.
Note 3: Employers may be required to pay employees for long service leaves accrued under state and territory long-service leave laws, or s.113 of Act, on the day that the employee’s employment ends or shortly thereafter.”
[62] Later, in an FWCFB 4735 Full Bench Decision at [6], the following was stated.
“[6] At this point, we do not plan to change the Alpine Resorts Award 2010, Pharmacy Industry Award 2010, or Rail Industry Award 2010. We will soon issue a statement regarding the next steps for these awards. We will modify the modern awards to include the model term for the remaining 83 awards, which do not currently specify a termination payment time frame.
[63] The Pharmacy Industry Award 2010 is silent about the question of when termination payments are required.
[64] Although Ms Ryan was on personal leave the day she was notified about her dismissal, it is not relevant to the question of whether Ms Ryan had met the minimum employment requirement. Ms Ryan’s claim that she couldn’t have been fired while on personal leave is not valid. The Act does make it illegal to terminate an employee for a short-term illness or injury. However, that provision is not under consideration by the Commission.
Case Source: Ryan v Stafford City Pharmacy Pty Ltd – [2019] FWC 3615 delivered 5 July 2019 per Commissioner Hunt
Has Your Employer Failed To Pay Your Termination Payment?
If your employer has not paid you your final termination payment get in touch with our team here at Australian Workplace Discrimination Representatives for support. We support employees only and fight for justice. Whether you need to put forward a General Protections or Unfair Dismissal application with the Fair Work Commission, our Workplace Advisors – non-lawyers have you covered! Call now 1800 333 666
