FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE v HILLS BEFORE & AFTER SCHOOL CARE | [2007] FMCA 4 |
| INDUSTRIAL LAW – Termination of employment − casual employee − preliminary matter to be determined − where applicant dismissed from the respondent’s employ after periods of absence due to injury − where applicant in receipt of Workers Compensation benefits at the time of dismissal − whether the applicant’s absence was a temporary absence on paid sick leave because of injury or illness within the meaning of Regulation 2.12.8 Workplace Relations Regulations 2006 STATUTORY INTERPRETATION − Legislative intention − International conventions − where Article 6 of the International Labour Convention 158, embodied in s.659 Workplace Relations Act 2006, prohibits dismissal of an employee temporarily absent from work due to illness or injury − whether Article 6 intended to include workers temporarily absent due to workplace injury. |
| Workplace Relations Regulations 2006, 2.12.8, 30C Termination of Employment Convention 1982 (Recommendation No.166), Article 6 |
| Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 Sixty-seventh session, Record of Proceedings (International Labour Conference) (Geneva, 1981) |
| Applicant: | JANE LEE |
| Respondent: | HILLS BEFORE AND AFTER SCHOOL CARE PTY LTD |
| File Number: | SYG2211 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 November 2006 |
| Date of Last Submission: | 20 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 15 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Nolan |
| Solicitors for the Applicant: | Liquor, Hospitality and Miscellaneous Union |
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- Case
- [2007] FMCA 4
- Decision Date
CaseChat Overview and Summary
The court had to determine if Lee's absence qualified as a temporary absence on paid sick leave because of injury or illness, as protected by Article 6 of the International Labour Convention 158, incorporated into the Workplace Relations Act 2006. This required an interpretation of the legislative intent behind Article 6, specifically whether it was meant to cover employees absent due to workplace injuries.
The court found that the absence due to a workplace injury did not constitute a temporary absence on paid sick leave within the meaning of Regulation 2.12.8. Consequently, the dismissal was not unfair. The court concluded that the legislative intent behind Article 6 was to protect employees from dismissal during temporary absences due to illness or injury, but it did not cover workplace injuries. Therefore, the dismissal did not contravene the statutory protections.
The court ordered that the application for unfair dismissal be dismissed.
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