VIC Unfair Dismissal and Discrimination - Urgent Situation

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26 March 2015
I am a consultant on a 457 visa in Melbourne, and was permanent employee of a consultancy for over a year and a half. In November/December 2014 I took 4.5 days of sick leave over a 3 week period. The primary reason for my illness was that my immune system had been compromised by treatment for a tumor. I told my line manager of the tumor following my first day of sick leave and requested support. However, my client at the time was inconvenienced by my leave and had me traded out for a different consultant. Following that, my consultancy's HR Manager and Director told me that they were taking disciplinary action with the intent to terminate me, based on poor performance for not doing work while I was sick. I told them about my tumor. They agreed to let me take an additional weeks of 2 of annual leave unpaid.

Upon my return in January, they proceeded with the disciplinary action with the intent to terminate. They now also included "poor performance" examples I had never heard of from my previous 2 clients, specifically that my "personality was too bubbly" at client #1, and that "my failure to navigate a difficult situation following a public disagreement with a client" at client #2. The "public disagreement" was an instance of bullying and harassment that I had told my consultancy about and they discouraged me filing a formal complaint because it would affect their commercial relationship.

I agreed to undergo a Independent Medical Evaluation at their request, and it confirmed my illness and also cleared me to work full time going forward as I am now much improved from last year. However, after receiving this report my consultancy summarily dismissed me on 13 March regardless, for the reasons stated above as well as adding more alleged "performance" concerns that are untrue and have never mentioned to me before. They have offered me a settlement of 3 months pay, but still insist on listing my reason for termination as poor performance and refused to consider changing it to redundancy. I know I have a Fair Work Australia and also a General Protections claim, but have not found a lawyer I am comfortable with. I am scared, angry, and my visa will now be terminated in 77 days unless I am reinstated or have found a new sponsoring employer, but my unfair dismissal being wrongfully listed as termination is making it hard to find a new job. I'm considering asking for my termination to be listed as resignation instead, but that is less favourable for me than redundancy, but far better than termination. Finally, I have been told a variety of different amounts that I can expect to win in a settlement, and while enticing, I do not know if they are actually likely and I don't want to incur excessive legal costs just to get a higher settlement that I ends up going all to lawyers.

If you have any recommendations, or are willing to share with me your opinion on the amount such a matter might settle for, I would greatly appreciate it.

Paul Cott

Well-Known Member
LawConnect (LawTap) Verified
26 May 2014
Ballarat, Victoria
Hi Dagaz,

In my experience 3 months pay in compensation is fairly generous, each case being different of course.

I would try hard to negotiate with them to have your termination listed instead as a resignation. That is rarely in my experience,refused.

Hope it works out and your health concerns get better.

Paul Cott.