An apprentice barber who was sacked after calling in sick on Australia Day has won his unfair dismissal claim.
The Fair Work Commission also awarded the worker more than $3,000 compensation.
The Commission found the dismissal harsh and unjust, and furthermore, the employer did not have a valid reason to sack him.
Apprentice barber wins unfair dismissal
Con Mourmourakis worked at Bladerunner Cuts in Wollongong south of Sydney for more than a year.
On January 25th, he sent his boss Muqdam Alkuzaie an SMS stating he wouldn’t be at work the following day – Australia Day:
“Hey Mick, went to the doctor. She said what I have is called gastro. Still not feeling good, won’t be able to come in tomorrow.”
Alkuzaie responded by accusing his apprentice of faking it:
“U keep doing it over n over, u acting sick”.
“That’s so unfair. I have not taken one day off sick since July.”
Second sick day
Two days later Mourmourakis again called in sick for the following day.
Alkuzaie responded by telling the worker he will be off every Friday from then on – effectively cutting the apprentice barber’s hours.
A few days later, Alkuzaie sacked the apprentice, giving him two weeks’ notice.
After his dismissal, the owner hired person in the apprentice’s role.
Employer gives three reasons for dismissal
Alkuzaie gave the Fair Work Commission his reasons for the dismissal.
- the role no longer existed.
- Mourmourakis’ performance had been below standard, and
- Mourmourakis’ unavailability due to “alleged temporary illness”.
Deputy President Gerard Boyce rejected the first two reasons but accepted the third.
However, the Fair Work Act states a person cannot be sacked “because of a temporary illness or injury”.
“I find that there is no valid reason for the applicant’s dismissal by the respondent,” Mr Boyce said.
He also found Alkuzaie failed to notify the apprentice of the reason for his sacking, and furthermore, he failed to give him a chance to respond.
“I am satisfied that the dismissal of the applicant was harsh and unjust,” Mr Boyce found.
Mourmourakis did not want his job back, so the Commission ordered his former boss to pay him just over $3,000 compensation.
You cannot sack someone for being sick
Industrial advocate Miles Heffernan from Fair Work Claims says it is unlawful to sack a worker for being sick.
“An employer cannot take adverse action against an employee who exercises a workplace right,” he said.
“And taking a temporary absence from work for illness is a protected right.
“In this case, the worker should have filed a general protections claim involving dismissal, instead of an unfair dismissal claim.
“A general protections claim usually results in a higher payout in addition to monetary penalties imposed on the employer.”
Mr Heffernan said the case highlights the importance of workers getting expert legal advice if a worker has been dismissed.
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