Angle Vale Tavern in South Australia.
Angle Vale Tavern in South Australia.

Sacked for too many sickies, even with doctor's notes

A BISTRO worker who claims she was told she would have "more time to be a mum" after being sacked while off sick has been awarded $2500 compensation by the Fair Work Commission.

South Australian woman Corina Shears filed an application for unfair dismissal after being let go from a casual role at the Angle Vale Tavern - a community pub and bistro run by the local soccer club, about an hour north of Adelaide - in September last year.

Ms Shears had been off work with "gastro and tonsillitis" when she received a text message informing her she had been removed from her shifts the following week, and that she would require a medical clearance to return to work.

"Hey Corina, hope you are feeling better," the assistant manager wrote. "Can I please get your doctor's clearance and we have your shifts covered for next week."

When she questioned why her shifts had been cancelled as her medical certificates only recommended she be off work over the weekend, she received a phone call from the venue manager, Josh Callery.

"He rang me to advise me he was letting me go due to always being sick and or my child being sick," Ms Shears told the Commission.

"I mentioned to him whenever I was unable to work I always supplied a doctor's certificate. He said we are a small team and I am being a liability. He then said to me ... I now will have more time to be a mum.

"I made him aware this was unfair dismissal and I was on sick leave and had supplied doctor's notes. Josh never once stated that my job was still active and to supply him with a doctor's clearance to return."

Her employer disputed this version of events.

According to Mr Callery's account, written following the call, he phoned Ms Shears "to discuss what has been happening with her health" as the "amount of time off she is having is [affecting] the team".

"I felt I had to make a decision that was best for both Corina's health, other team members and the customers," he wrote. "I replaced Corina for the two shifts she was rostered for next week. Let Corina know on the phone that there won't be any hours at the moment for her.

"She replied with, 'You're sacking me.' I responded with, 'No, I am not sacking you, Corina, you need to take care of your health and yourself so there are no hours at the moment.' She replied with, 'Thanks for sacking me.'

"I explained she is not fired and that she needs to take care of her health and we are unable to give her any hours around her restricted availability due to her running her own business.

"I then said, 'If you would like to come in after you are feeling better we can sit down, go over these issues of reliability and availability and performance with a view to putting her back in the roster.' She said, 'Whatever, thanks', and hung up."

The Angle Vale Tavern maintained Ms Shears was technically still employed but had not yet provided a medical clearance. Fair Work Commissioner Peter Hampton found while Mr Callery "had not subjectively intended" to dismiss her, the phone call did amount to a dismissal.

"That discussion objectively meant that there were no scheduled future hours on the roster and there was no reliable indication that there would be such work made available to Ms Shears," he said.

"There were legitimate concerns about Mrs Shears' reliability and work attendance, and her capacity to work in the environment of the bistro, at least in the short term.

"Certain performance issues had also been discussed with her during the employment by the Tavern. However, the Tavern had not subjectively intended to dismiss Mrs Shears, at least at that point, and in these proceedings did not claim a valid reason existed for that action."

Mr Hampton said even taking into account the employer's circumstances, the "absence of a genuine warning and opportunity to improve Mrs Shears' work performance and to make a response was unreasonable".

In addition to being "unfair", Mr Hampton said he was satisfied the dismissal was "harsh, unjust and unreasonable", and ordered the Angle Vale Tavern to pay Ms Shears $2509 in lost wages.

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