- Employer Resists Injunction for Reinstatement in Adverse Action Claim
- December 20, 2013 | Author: Adam Salter
- Law Firm: Jones Day - Sydney, New South Wales Office
An employee has failed to obtain an injunction against her dismissal after claiming to have been sacked due to her age and her absence on sick leave. The employee brought an application for interim reinstatement in the Federal Court of Australia, but was refused on the basis that she had failed to demonstrate damages would not be an adequate remedy. The significantly deteriorated relationship between employee and employer, the delay in the employee's application, and the appointment of a replacement, also played a role in determining the outcome of the case.
However, the Court considered that there remained a serious dispute as to whether the employer took unlawful adverse action when it sacked the employee. The Court noted that the timing of the employee's dismissal (whilst she was absent from work on medically certified sick leave) raised the serious question as to whether the dismissal was made for a prohibited reason. The fact that no justification was given in the termination email supports the employee's case.
The employer gave evidence that the dismissal was made prior to the employee's sick leave, based on performance issues and a worsening relationship with senior executives. If accepted at trial, the judge deemed this evidence sufficient to negate the employee's adverse action case.
Lesson for Employers
As always, care needs to be taken when terminating an employee's employment. While employers are not required to give a reason for the termination, a lack of a reason (even if only brief) can create suspicion of a more sinister reason in the employee's mind. A poorly timed or poorly communicated termination can lead to a costly court case. The timing of the termination should be subject to consideration, as temporal connections to sick leave can impliedly suggest an unlawful dismissal.
Russell v Institution of Engineers Australia t/a Engineers Australia (2013) FCA 1250