VIC Unlawful Dismissal / Termination

Discussion in 'Employment Law Forum' started by th3melgal, 22 May 2019.

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  1. th3melgal

    th3melgal Member

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    My husband joined a insurance company 3 Dec 2018 and his employment was terminated on 29 Mar 2019 stating the reason that he was not reliable as he had taken more than 4 weeks of sick leave , all the leave which he had taken was sick leave and was supported with medical certificate (s).

    During his whole tenure he was never given verbal or written warning in terms of quality of his work
    or performance at work.

    He has filed claim under general protections – as he is covered under

    s.351 Discrimination

    and

    s.352 Temporary absence – illness or injury

    The employer has responded and refuted to reinstate my husband in his job reason(s) being -

    The Applicant was dismissed after being absent for weeks during a 12 week training period.

    The Applicant was told that as a result of missing so much time he would not be deemed to have passed training and therefore the Respondent was exercising its right under the employment contract to end his employment within the probation period.

    The Applicant's expression that he was treated to differently is incorrect.

    The respondents decision was based on the fact that being at job daily was a inherent requirement of the role and since employee has not been able to fulfill that his services have been terminated in probation period.



    Attending job was a inherent requirement of the job and since he was away for long the requirement was not fulfilled hence no claim under 351

    Our understanding is – the reason provided in unfair as a person when he or she is ill and has produced doctor's certificate then employer should have been more considerate of the situation, there was no return to work program or work place adjustments offered to him.

    As my husband had taken some part of his leave as unpaid leave s.352 is not applicable as well.

    Our understanding is – he was getting only 10 paid leaves for whole year of work on pro rated basis , if he was sick for more than what he had accrued then there was no other way to apply for unpaid leave as advised by his manager.

    Workplace advisory service is high in demand and they can only speak to us after 2 weeks.

    We are seeking legal advice and till the time we get a lawyer who is in our budget or can provide pro bono advice – reaching out to forum to seek help.

    Thanks ,

    Kathy
     
  2. Rod

    Rod Lawyer
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    Hi Kathy,

    Give me a call and we'll see what we can work out.

    It appears you are already aware unfair dismissal doesn't apply.
     
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