An apprentice barber who was sacked after calling in sick on Australia Day has won his unfair dismissal claim and more than $3,000 compensation.
The Fair Work Commission found the dismissal was harsh and unjust and that the employer did not have a valid reason to sack him.
Boss accuses worker of faking it
Con Mourmourakis had 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 that 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.”
Mr Alkuzaie responded by accusing his apprentice of faking it:
“U keep doing it over n over, u acting sick”.
“That’s so unfair,” Mr Mourmourakis responded. “I have not taken one day off sick since July.”
Worker sacked after calling in sick for second time
Two days later Mr Mourmourakis again called in sick for the following day.
Mr Alkuzaie responded by telling the worker that he would be off every Friday from then on – effectively cutting the apprentice barber’s hours.
A few days later, Mr Alkuzaie sacked the apprentice, giving him two weeks’ notice.
After his dismissal, another person was hired in the apprentice’s role.
Employer gives three reasons for dismissal
Mr Alkuzaie told the Fair Work Commission he had three reasons for the dismissal:
- the role was no longer required,
- Mr Mourmourakis’ performance was below standard, and
- Mr Mourmourakis was unavailable due to “alleged temporary illness”.
Deputy President Gerard Boyce rejected the first two reasons but accepted the third.
However, the Fair work Act stated a person cannot be sacked “because of a temporary illness or injury”.
“I find that there was no valid reason for the applicant’s dismissal by the respondent,” Mr Boyce said.
He also found the apprentice was not notified that was the reason for his sacking, nor was he given a chance to respond.
“I am satisfied that the dismissal of the applicant was harsh and unjust,” Deputy President Boyce found.
Mr 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 said it is unlawful to sack somebody for being sick.
“An employer cannot take adverse action against an employee who exercises one of their workplace rights, and one of those rights is the right to take sick leave,” he said.
“In this case, the worker should probably have lodged a general protections claim involving dismissal, instead of an unfair dismissal claim, and that could have resulted in a much higher payout and monetary penalties being imposed on his boss.
Mr Heffernan said the case highlights the importance of workers getting expert legal advice if they have been dismissed before making a claim.
“By making the wrong claim, workers can cheat themselves out of thousands of dollars in compensation, so they should always get some advice before lodging a claim, but remember, you only have 21 days to file a claim, so don’t delay,” he said.
If you have been unfairly dismissed from employment, you may be entitled to compensation.
For specialist help and advice, please call our team at Fair Work Claims today on
1300 324 748
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Fair Work Claims is a private consultancy and advocacy firm with no affiliation to any government agency, commission or tribunal.