Whether a pharmacy employee was unfairly dismissed involved the timing of sick leave as well as a paid employment trial
In March 2019, the former employee of a Queensland TerryWhite Chemmart applied to the Fair Work Commission, saying that her dismissal was harsh, unjust or unreasonable.
The pharmacy objected to this application, saying that at the time of the woman’s dismissal, she had not met the minimum employment period of six months.
The employee told the hearing that she had commenced employment with the pharmacy on 23 August 2018 as a stock controller, while the pharmacy said that she undertook a paid trial commencing on that date, but that the date she actually started employment was 28 August 2018, in line with her employment contract.
Commissioner Jennifer Hunt noted that the date of the woman’s dismissal was in dispute.
The pharmacy said that she was dismissed on 20 February 2019, when she was informed of the termination of her employment both verbally and in writing.
The letter of termination, dated 20 February, stated that her probation period was set to end on 23 February.
It said that it followed up a verbal notification on 11 February in which the woman was told that “due to your current skills and competences, you may not be suitable in the role of stock controller and that we will be taking appropriate action, which may include termination”.
“After careful consideration, for conduct, performance and suitability reasons, as well as changes in our staffing requirements due to lower than expected business performance, we have unfortunately decided not to continue your employment beyond your probationary period.”
Based on the length of her service, commencing 23 August 2018, her notice period was one week, therefore her employment would end on 26 February, the letter stated, but she was advised that she would be given the equivalent of one week’s pay in lieu of any notice.
She was told she would be paid accrued entitlements and any outstanding pay, up to and including the last day of work, including the balance of any time off instead of overtime accrued but not yet taken, and superannuation.
However, the former employee claimed that while she had been notified of the dismissal on 20 February, the termination could not have taken place on that date because she was off sick.
She had a medical certificate certifying her absence from work due to illness from 19 February 2019 up to and including 22 February 2019.
She said that the termination of her employment could not have taken place until at least 25 February 2019, which meant that she had completed more than six months’ employment at the time of her dismissal.
On 20 February 2019, her employer had called her at home and asked her to come into the pharmacy.
She said she was “extremely unwell” at the time, and that her mother had driven her to the pharmacy, where she was informed that her employment was being terminated.
She said that in accordance with the Fair Work Act, an employee cannot be terminated while on sick leave – therefore she could not validly be dismissed until she had returned to work, which would have been 25 February 2019, and which she said exceeded the six-month minimum employment period.
She also said that if she had been able to work her notice period of one week, her employment would still have exceeded this period, and that the week’s payment in lieu of notice did not reduce her employment period.
Thus, her employment did not effectively come to an end on 20 February, she claimed.
She also said she was never spoken to about her performance in the role.
However her employer said that the former stock controller was on a paid trial from 23 August and commenced in her “substantive” role on 28 August 2018.
He said the plan was originally to formally dismiss her on 19 February, but she called in sick.
He agreed that she was not dismissed in the 11 February meeting, but that she was dismissed on 20 February, and thus she did not meet the requirements under the Act to be considered a person protected from unfair dismissal.
The pharmacy’s stance was that the employee was not terminated due to accessing her workplace right to take personal leave – despite being off sick when the action took place – but because of ongoing poor performance.
The timing, with her off sick, was simply “unfortunate,” it said.
The woman was paid her entitlements on 25 February along with the normal payroll, due to difficulty contacting the employer’s business partner’s wife, who normally performed this role.
Commissioner Hunt agreed that the woman’s date of commencing employment at the pharmacy was 23 August 2018, at the beginning of the paid trial.
However, she said she did not accept any doubt in either party’s mind after the 20 February 2019 meeting, that the woman’s employment continued past that point.
She concluded that the dismissal took effect on 20 February, and noted that the woman had been paid out within the legislated maximum time of seven days from the termination.
She had not served the minimum employment period required to apply for unfair dismissal.
“The application is therefore dismissed,” the Commissioner said.