A cafe manager took adverse action against a 17-year-old employee when he dismissed him for being unable to work due to a chest infection.
The Federal Circuit and Family Court held that his illness amounted to a “temporary disability” that caused an absence from work. It awarded the employee compensation of $7,320.
The employee provided a medical certificate to cover his absence and the employer didn't participate in court proceedings.
Facts of case
The employee notified his manager on the morning of his shift that he could not work because of his infection. He had felt unwell while working the previous day. The manager insisted that he attend work anyway and when he refused, removed him from the Facebook group that notified employees of work shifts.
The manager then notified the other staff that the employee was no longer working there and warned them that there was “zero tolerance” for not attending rostered shifts. A co-worker sent this message to the employee.
The employee obtained a medical certificate the next day to cover his absence.
Disability discrimination occurred
The court ruled that the employee’s chest infection was a “temporary disability” that caused his absence from work. It was therefore covered by the unlawful dismissal provisions of the Fair Work Regulations 2009. By dismissing him for that reason, the cafe took adverse action against him.
The employer had also continued to pay him as a 16-year-old after he had turned 17. The court took into account the impact of the event on the young employee, how the employer informed other staff of his dismissal and the fact the employer refused to take part in any court proceedings. It awarded compensation of $6,000 for hurt and humiliation, and $1,320 for economic loss, amounting to a payout of $7,320.
What this means for employers
A temporary absence from work due to illness or injury is a prohibited reason for dismissing an employee. In this case, also, the employee was dismissed before he could submit a medical certificate to cover his absence.
If an employer refuses to participate in court or tribunal proceedings, the court/tribunal can make a default judgment in the matter. In this case, the court accepted the employee’s claims.
Read the judgment
Hampton v Brown Cow Cafe Sunbury Pty Ltd  FedCFamC2G 808 (31 October 2023)