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What not do to! Employee terminated following leave request to recover from surgery

In a recent case, Tapping v Empress Diamonds Pty Ltd ATF Empress Discretionary Trust [2021] FCCA 1335 (“the Tapping Case”), an employer was found to have breached the general protections provisions of the Fair Work Act 2009 (“FWA”) after terminating an employee who requested a period of leave to recover from surgery following a breast cancer diagnosis.

Background: General Protections Provisions

The general protections provisions of the FWA prohibit an employer from taking adverse action against an employee because the employee has, or proposes to exercise a workplace right.

Adverse Action

The FWA provides a number of examples of adverse action, including dismissing an employee, injuring them in their employment, altering their position to their detriment, or discriminating between them and other employees.

Workplace Right

According to the FWA, a person has a workplace right if the person is entitled to the benefit of a workplace law, workplace instrument or an order made by an industrial body.

Reverse Onus of Proof

The general protections provisions of the FWA provides for a reverse onus of proof. In practice, this means that if an employee can demonstrate that adverse action was taken against them and that the employee exercised a workplace right, the employer then has the burden of proving that the employee’s exercise of a workplace right was not a substantial or operative reason for the adverse action.

The Tapping Case

Ms Tapping was employed by Empress Diamonds Pty Ltd (“Empress Diamonds”).

After receiving a diagnosis of an aggressive breast cancer, Ms Tapping requested a period of annual leave and personal leave for a period of approximately 5 weeks to recover from surgery. The request was made to Gabi Yitshaki, the sole director of Empress Diamonds. Mr Yitshaki replied “I can’t keep your job”. Mr Yitshaki then wrote on a separation certificate under the subheading “reason for separation”: “cannot keep position because of breast cancer treatment and cannot hold job after“.  

The Court found that Empress Diamonds breached the general protections provisions under the FWA as it dismissed Ms Tapping because she proposed to exercise her workplace rights by accessing her annual leave and personal leave to recover from surgery. 

In addition, Mr Yitshaki was found to be an accessory to Empress Diamonds’ breach of the general protections provisions on the basis that he was knowingly concerned in her dismissal.

A further hearing is to take place in relation to the penalty to be imposed on Empress Diamonds and Mr Yitshaki and compensation to be paid to Ms Tapping.

Liability limited by a scheme approved under Professional Standards Legislation

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