Leave it out: dismissing worker diagnosed with cancer constitutes adverse action

In brief 3 min read

The Federal Circuit Court of Australia (Court) has decided that a diamond retailer contravened the Fair Work Act 2009 (Cth) (Fair Work Act) by dismissing an employee diagnosed with cancer after she proposed to exercise her workplace rights to take annual and personal leave to recover from surgery.¹

How does this affect you?

• The general protections provisions of the Fair Work Act prohibit an employer from taking adverse action against an employee because the employee has, exercises, or proposes to exercise a workplace right.
• Employers should be mindful of the 'reverse onus' imposed by the Fair Work Act:² if an employee can demonstrate that adverse action was taken and that the employee exercised a workplace right, the employer has the practical burden of demonstrating that the employee's exercise of a workplace right was not a substantial or operative reason for the adverse action.
• Credible evidence from the decision-maker regarding the reasons for the adverse action is crucial in displacing the statutory presumption.

Background and key takeaways

Ms Elizabeth Tapping was employed as a Sales Manager by Empress Diamonds Pty Ltd (Empress Diamonds), a small diamond wholesale company.

Following a diagnosis of aggressive breast cancer, Ms Tapping advised the owner of Empress Diamonds that she required surgery and requested to take approximately five weeks of her accrued annual and personal leave in order to recover. In response, the owner of Empress Diamonds allegedly told Ms Tapping that he could not keep her job and dismissed her a few weeks later, signing a separation certificate stating that Ms Tapping 'can not keep position because of breast cancer treatment and can not hold job after'.

Empress Diamonds disputed it had dismissed Ms Tapping. The business owner denied saying he could not keep her job and maintained that the separate certificate he signed was blank.

The Court preferred Ms Tapping's evidence over that of the business owner, finding she was a 'far more reliable and credible witness'. The Court ultimately concluded that Empress Diamonds had dismissed Ms Tapping because she proposed to take a period of 'lengthy and indeterminate personal leave and annual leave' to recover from surgery. The Court also determined that the business owner was an accessory to Empress Diamond's adverse action against Ms Tapping because he had been knowingly concerned in her dismissal.

This decision serves as a timely reminder that employers have the burden of displacing the statutory presumption that adverse action was taken for a prohibited reason. The Court specifically criticised Empress Diamond's submission that there was 'no evidence' to support the dismissal having occurred because Ms Tapping proposed to take leave on the basis that it failed to pay sufficient regard to the impact of the reverse onus.