Cleaner wins job back after FWC ruling

NSW cleaner takes employer to task over unfair dismissal.

A NSW cleaner has won her job back after the Fair Work Commission ruled the 56-year old was unfairly dismissed by her employer.

Veronica Bennett had worked for Joss Facility Management for five and half years, cleaning at Blayney Public School, the Blayney Courthouse and the Blayney Country Energy premises in regional NSW.

In 2014, Bennett was absent from work on unpaid sick leave for a period of about two and a half months. Her absence was the result of surgery and the associated recovery. In August 2016 she commenced another period of unpaid sick leave.

During her recovery Bennett provided ongoing medical certificates from her treating doctor who advised that she was unfit for work for various fixed periods of time.

Bennett held regular discussions with the company’s return to work coordinator during that time. In January 2017 Bennett said she expected to have a better understanding as to when she would be able to return to work following a doctor’s appointment scheduled for 10 February.

On 6 February Bennett was contacted by her employer’s injury department manager and internal legal counsel, who during the phone conversation formed the view that Bennett could “no longer perform the inherent requirements of her position” and subsequently terminated Bennett.

The following day the company sent a letter confirming her termination. Three days later Bennett’s doctor provided her with a certificate stating she was fit to resume work on 14 February.

In his ruling Commissioner Ian Cambridge said the case was among a handful that “remain memorable because of their particular circumstance”.

“Unfortunately, this case will join the ranks of those elite few which forever remain ignominiously memorable,” he said.

Commissioner Cambridge said there was no proper basis for the company to form the view that she was unable to undertake the inherent requirements of her position without any medical opinion to support that conclusion.

“The reason for dismissal was erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical, intemperate, and devoid of compassion,” he said, ruling Bennett be reinstated and reimbursed for loss of wages.

“Employees are human beings and not human resources. A machine or item of office equipment might be quickly discarded if it is broken or malfunctioning. However, an employee is entitled to be treated with basic human dignity, and advice of the termination of employment by telephone or other electronic means should be strenuously avoided so as to ensure that the dismissal of an employee is not conducted with the perfunctory dispassion of tossing out a dirty rag.”

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