Introduction

Read the full decision here.

What happens when two work colleagues have worked harmoniously for almost a decade, suddenly cannot simply work well together. In this case gun licences, referencing mental health issues, a somewhat arrogant MD and a scathing FWC member.

In this unfair dismissal matter, the managing director represented the company and the applicant defend herself. The applicant having been employed for some 91/2 years, starting as a receptionist to administrative manager. The applicant’s “crime”: taking sick leave without approval, plus sending allegedly “confidential” emails to her private email address – an email account she shares with her husband (which had the FWC member somewhat mystified that she did not have her own email account).

The email

The email in question relates to the behaviour of the applicant’s co-worker (“ZA”), which the applicant passed on to another employee, who then forwarded to the medical clinic that was to assess the co-worker’s behaviour. It read:

“Hi

I am sure there is more, but this is a start

Bullet points

  • Short fuse
  • Staff freighted to talk to him in case he losses it (has smashed trays at work, kicked and threw a chair)
  • Victim
  • Selfish
  • Takes no responsibility for actions
  • Threatens to kill himself (putting 2 fingers to his head)
  • Said everyone is inconsiderate (on the road), so now doesn’t indicate, speeds and if he dies, so be it
  • Gun licence – guns and bullets at home
  • Said if he losses his guns then life is not worth living as these are the only things that make him happy
  • Money – will not spend as if he has to now that means his whole life has been a waste
  • Worries about everything to the extreme – laid awake at night worrying if neighbours were going make noise
  • wont drive into city and will not pay for taxi so IBS staff have to take him or pay for cabs
  • Doesn’t want to go on any medication, he said it is better for everyone else but no him, so not doing it
  • Should of stayed in Cairns????? Took drugs, drank and got a slut pregnant
  • Talked about trying something new, but said if he doesn’t like it after 3 months then its been a waste of money
  • Lives with mum
  • The only thing that would make him happy is more money, and opening up a gun range/place to ride bikes or quads
  • Doesn’t understand why he hasn’t got a girlfriend
  • Hates Brisbane and talks of moving back home
  • Depressed and miserable all the time
  • Doesn’t attend work Christmas parties…..”
[original text]

Following receipt of the above correspondence from the applicant, the other employee forwarded a copy of the email to a reception email account of the medical clinic to where the problematic co-worker was to attend an appointment. In doing so the other employee included the correspondence below:

“Hi

We are bringing [Mr ZA] in on Friday at 11am to see [doctor’s name] for his appointment.

I thought it best that we right down a few things that we are very concerned about and why the company is paying for his initial treatment.

The office is “walking on eggshells” at the moment so we have written down below an insight on to what is going on.

Please add this to his file. I will be the one driving him in on Friday.

He’s a good [occupation] but we are very concerned about his mental health.

Kind regards

[Name]

Bookeeper”

[original text]

Why MR ZA was being sent to a psychiatrist was not explained – only inferred.

Confidentiality Order

The Commissioner granted the “co-worker” a Confidentiality Order, so economising his name to “ZA”.

Co-worker v Applicant

The applicant stated that she asked Mr ZA a question three times, and after he ignored her, she asked him, “Are you deaf?”. He replied that she was a raging bull and that she had better watch herself. Her evidence is that he made that statement with real malice and hatred. Further, Mr ZA said to her, “We all know what you areyou’re a vindictive narcissist, and you better look that up”. The applicant replied that she knew what it meant to which he replied, “I bet you do”. The applicant went home early that day as she felt threatened.

Manager’s fear of being shot

The applicant met with management representatives the next day to explain what had happened. She requested Mr ZA be given a written warning as she felt threatened in the office. Her evidence is that a management representative said he didn’t want to do anything just in case it set Mr ZA off and he came in and shot them.

At no stage throughout the dealings with Mr ZA was there any conflict resolution undertaken. The best that management did was advise the applicant to stay away from ZA.

The applicant claimed that on many occasions Mr ZA would walk past her desk to leave the office, and he would say words to the effect, “Still here, you won’t be for long, narcissist”. The applicant acknowledged that on some occasions she snapped back at him.

MD has been watching too many courtroom dramas

In a fruitless attempt to go to the applicant’s state mind, the MD brought up domestic violence issue that the applicant had suffered. However, the Commissioner was on to this tactic, as the bringing this issue to the table brought forward the fact that this had occurred some eight years previous and was of no probity value; and painted the MD in a very poor light. Put plainly, it backfired.

Not to be beaten on this point, the MD then went on to suggest that the applicant’s stress was caused by a car accident and wrote off her car. The applicant provided correspondence from her insurer indicating that the vehicle was repaired and not written off.

Dismissed for serious misconduct

The applicant, being dismissed for serious misconduct, was not paid notice period and was six months from being eligible for long service leave (this being in Queensland).

The Commissioner’s own words…”pretty thick”

I will leave it to the Commissioner’s own words which are very pointed, noting that I have highlighted the juicy bits):

“Upon learning that she was likely going to be taking some time off work, [the MD] took it upon himself to declare that it would be paid as annual leave, and that if she did not return to work by Friday, he would be looking for somebody to replace her. Another employee (the same one who sent the email to the medical clinic] relayed this information to [the applicant]. [The MD] asks the Commission to accept his evidence that he did not consider dismissing [the applicant earlier] on account of her absence from the office, and when he said he would need somebody to replace her, he meant that he would need the job to be performed by somebody in her absence.

“It is difficult to accept [the MD’s] evidence on this issue when he said…that [the applicant] would have to be “pretty thick” if she didn’t get the message that if she didn’t attend work…she should know that she was being dismissed”.

The Commissioner goes to town on the MD

“I find [the MD’s] views on [the applicant’s] absence from the workplace…to be astounding. He is not a doctor, yet he considered that she was retaliating against him. He had no regard for the medical certificate obtained by her, issued by a medical practitioner, and in these proceedings appeared to me to unnecessarily eager to discuss the fact that she had, many years ago, and not in her present relationship been a victim of domestic violence. Why he did so appears to me to be perverse and demonstrative of his views of [the applicant]. It is not clear why [the MD] thought it appropriate to raise this issue. Did he think the Commission would think less of [the applicant]? Think her weak? Think her a victim? Think her the continual subject of abusive men? The fact that [the applicant] was a victim of domestic violence many years ago has no bearing on why [the applicant] was declared absent from work at this relevant period of time…[The MD] need be assured the Commission thinks poorly of [the MD] for even raising the issue, not [the applicant] for her past unfortunate circumstances.

“Further…[the MD} rudely suggested that perhaps it was [the applicant] and not Mr ZA who should have been seeing a psychologist. [The MD’s] contempt for [the applicant] was evident, and in my view unpalatable, unnecessary and unwarranted. It appeared to me during the hearing that [the MD] simply wanted to point-score against [the applicant], yet he did not impress me at all, nor did he succeed in his attempt to point-score.

“This is evident [when] I was questioning [the MD] if [the applicant] needed his permission to be absent from work on account of being ill and he laughed at the question put to him. His contempt for the question being put demonstrated to me the arrogance that [the MD] dealt with [the applicant’s] absence; how dare she be ill and not well enough to attend for work!”

Permission not required to take sick leave

“[The applicant] did not need [the MD’s] permission to be absent from work…She was excused from attending for work by a medical practitioner…who declared on a workers’ compensation medical certificate that she would be examined again on 11 April 2020.

“[The applicant’s] obligation to the Respondent was to inform the Respondent of her inability to attend for work and provide evidence of such. She met this obligation and did not attend for work during the period of her incapacity.

“Where [the applicant] did not need to obtain consent to commence taking leave on account of her incapacity, she did not need to consult with the Respondent to make a workers’ compensation claim. [The applicant] had statutory entitlements regarding personal leave per ss.95, 69, 97, 98, 99 of the Act, and a statutory entitlement to make a worker’s compensation claim. Relevantly, s.352 of the Act provides that:

‘An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.’

“Similar provisions apply at s.772 of the Act. Ms Tracy was certified unfit to attend for work until 11 April 2020. She provided the evidence required at regulation 6.04 of the Fair Work Regulations 2009.

“[The applicant] left the Respondent short-staffed during a critical time for the Respondent’s business. This is a fact, not a feeling, sentiment or perception. Her inability to perform work would have been the same if she had been suffering from gastroenteritis, influenza, or any other ailment preventing her from performing work. It was [the MD’s] inference that she was deliberately pulling a “strike” on the Respondent that contributed to the Respondent’s decision to dismiss her.

“For the above reasons, one of the reasons for the dismissal, being the Respondent’s assertion that [the applicant] took unauthorised and unwarranted leave in a time of crisis is not a valid reason for the dismissal.”

Breach of confidentiality

“Primarily, the Respondent contends that [the applicant] either did not have exclusive use of the email account shared with her husband, or it was her husband’s email account and not hers. The termination letter states the following, suggesting that it was because it was sent to [the applicant]:

‘You not only betrayed this trust by taking unapproved leave at a time of national crisis but you also forwarded sensitive internal emails to other parties [the applicant’s husband] on [date/time] using the admin account. This is a direct violation of [the respondent’s] Policy and directly affects government restrictions on OTP payroll conditions for suppliers. It is also a violation of your Employee Confidentiality Contract and Employment contract. This violation alone is sufficient cause for instant dismissal.’ [The Commissioner’s emphasis].

“[The MD], put to [the applicant] that it was odd that a woman would share the same email account as her husband. [The applicant] responded that she had done so for around three years. I do accept that it is an odd thing to do; [the applicant] would no doubt have had her own personal email account prior to meeting her now husband, but now shares use of his account which uses his name. Why [the applicant] gave up using a prior, personal email account has not been explained. I accept her evidence that she and her husband share the account. I do not accept the inference that it is solely an account for [the husband’s] use and therefore it would mean there was a further improper reason for sending the emails to [the husband’s] email account.

“While the forwarding of work emails to an employee’s email account (or one that is shared with a family member) should be discouraged, in these circumstances I do not accept that it constituted a breach (or if it did it was not a serious breach) of the Respondent’s policies. Nor do I find that at common law it would constitute a breach or serious breach of confidentiality obligations an employee in [the applicant’s] position owes to the Respondent.

“The most ‘damning’ email included in the emails [the applicant] sent to herself…is the one prepared by her, with her own thoughts and opinions on Mr ZA’s psychological issues. It is clear that this is what she considered to be significant issues with Mr ZA’s psychological state in [at the time], and she listed them and forwarded them to [another employee]. [The other employee] then added her own email to provide context to the relevant medical practitioner who was shortly going to be examining Mr ZA.

“There was nothing company-sensitive in the material…I do not accept that the material [the applicant] sent herself would constitute the defined term of Confidential Information…Any reliance on it then being Confidential Information and a breach to share is not then supported.

“I accept [the applicant’s] evidence that she was encouraged to provide as much relevant information to her workers’ compensation claim as was necessary. [The applicant’s] own opinions on Mr ZA’s psychological condition was, in my view, not overblown or overstated as asserted by the Respondent. She held genuine and real concerns, based on Mr ZA’s various statements to her over a relatively short period of time that Mr ZA was unstable.

“I accept [the applicant’s] evidence that Mr ZA put two fingers to his head and suggested that he didn’t want to be here (as here on Earth, not at work or in his location as suggested by him in his evidence). I accept [the applicant’s] evidence that she was dealing with a real scenario of an employee violently punching a chair, intimating suicide by putting two fingers to his head, and she demonstrated the appropriate duty of care to Mr ZA by meeting with him privately and investigating the issue.

“[The applicant] reported all of this information at the time. [The MD] has, in my view, now turned on [the applicant] and conveniently forgotten the seriousness of the issue because of his loyalty to Mr ZA. He approved and endorsed the medical examinations of Mr ZA with the information he had before him at the time. It appears to me that [the MD]…had no regard to [the applicant’s] sizeable length of service with the Respondent and her exemplary employment history, but reverse engineered a determination that [the applicant] was the root cause of Mr ZA’s mental health issues. This is so despite a very good relationship existing between [the applicant] and Mr ZA for the period late 2010 to August 2019.

“Where [the applicant]left the meeting of 18 March 2020 in tears, with [the MD] suggesting she might find another job, and he would choose Mr ZA over her if necessary, it is understandable that [the applicant] might gather for herself a modest amount of material generated during work time to assist with her in making her workers’ compensation claim.

“The mere fact that [the husband] might read these emails is, in the circumstances, not an important issue. [The applicant] no doubt discussed with [her husband] the concerns she held about Mr ZA’s psychological state, including her concerns regarding his access to firearms.

“I do not accept that the material sent by Ms Tracy to herself constitutes employee sensitive medical information. All it simply confirms is that Mr ZA had medical appointments which is a fact. The emails do not contain medical information.

“The Respondent’s submissions make it clear that the Respondent was more concerned with Mr ZA’s potential emotional breakdown than that of [the applicant]. This is so because of the more valued position Mr ZA holds within the Respondent and his known fragile state. [The MD] was, as is demonstrably clear, more concerned with Mr ZA bringing a workers’ compensation claim against the Respondent than he was about [the applicant] doing the same. When she did, he immediately dismissed her.

“Further…the Respondent appears to me, to make some concession that if [the applicant] is correct, the Respondent’s employees might be at risk if Mr ZA had a psychiatric breakdown. This is supported by [the applicant’s]…evidence…where [the MD] suggested that Mr ZA should not be set off as he could come into the office and shoot people up

“I reject the Respondent’s assertion that [the applicant’s] act of sending the emails that she sent to herself would affect the Respondent’s reputation in the marketplace or with the ATO as a trusted data repository and processor. There is no evidence that this constituted any sort of data breach, was reportable, or would otherwise become widely known.

“For the above reasons, one of the reasons for the dismissal, being the alleged breach of confidentiality is not a valid reason for the dismissal”.

The Commissioner becomes medically trained?

In what to me sounds contradictory, in that the Commissioner noted the lack of medical training of the MD relating to the sick leave certificate, went on to comment:

“I accept [the applicant’s] evidence that Mr ZA would, at times, ask her if she was still at work and call her a narcissist. He clearly was projecting all of his own issues on her, making out that they were her fault and not his. I have no doubt she held concerns about his conduct, yet she was still doing her work right up until 18 March 2020 when [the MD] suggested she should find other work because of the conflict in the office”.

[…]

“For the above reasons, one of the reasons for the dismissal, being the ongoing conflict and alleged bullying of Mr ZA since August 2019 is not a valid reason for the dismissal”.

The Commissioner rips into the MD in concluding

In finding that there was no valid reason for the dismissal, the Commissioner summarised the matter as follows:

“The MD’s] conduct in the manner of the dismissal is, in my view, one of the poorest displays of a respondent I have seen since being appointed to the Commission. One of the reasons for the dismissal was [the applicant’s] absence from work whilst incapacitated. During the hearing [the MD} made further statements that she would have been “thick” if she had not have known that she would have been dismissed from the role if she didn’t return to work.

“Unfortunately for [the applicant], [the MD] placed his loyalties with Mr ZA and determined that he would rather see Mr ZA remain in the business than [the applicant]. Fortunately for [the applicant], she no longer has to work for [the MD]”.

The Commissioner then philosophises that:

“When one runs their own business, it would be helpful to have some self-reflection of one’s own conduct. It is almost impossible to imagine how [the MD] could reason that the Commission would not find for [the applicant] with all of the information before it. This is so, despite [the MD’s] “declared victory” in having [the applicant’s] workers’ compensation claim rejected. The considerations before WorkCover Queensland are not the same as the considerations before the Commission.

“I find that [the applicant’] dismissal was harsh, unjust and unreasonable. Whilst it is not necessary to determine all three grounds, I find that [the applicant] was unfairly dismissed”.

Remedy

The Commissioner ordered that the applicant be awarded compensation to the maximum allowed, that is six month’s pay plus superannuation ($32,850).

However, in a twist, the Commissioner ordered that the applicant produce to his chambers bank statements for the period from her dismissal to the date of the hearing to determine whether the applicant had earnt any income during this period (as this would ordinarily be deducted from any compensation order).

A nod to COVID-19

The Commissioner ended on:

“I regret that there has been a sizeable delay for the parties in having this matter determined by the Commission. This is due to the large number of reserved decisions I currently have before me as a result of the spike in various applications in this very unusual year. I consider it would not have been appropriate for the material above …to have been sought in the lead-up to this decision being released as it would have foreshadowed that I have made a finding of unfair dismissal”.

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Introduction

The Federal court of Australia has handed down an expedited decision in response to an application by unions for paid personal leave during period of stand down. Whilst no surprises, there are some very good historical references in relation to payment and work obligations, and the perplexing decision that a “working day” x 10 is the entitlement to personal leave and it also requires that overtime that would normally be worked also be paid.

Preamble

This decision involved two applications from multiple unions in the face of huge stand-downs by Qantas. The Federal Court decided to merge the applications into a single matter and, due to the “urgency” of the issue handed down its decision in a very timely manner.

Oh, by the way if you cannot wait until the end, the answer is “no”. Employees are not entitled to personal leave whilst they have been properly stood down.

Background

One of the commercial victims of the COVID-19 pandemic has been Qantas Airways Limited (“Qantas”) and its employees.  In mid-March 2020 Qantas announced its intention to stand down approximately two-thirds of its 30,000 employees.

Of present concern is the entitlement of Qantas’ employees to access paid personal/carer’s leave or compassionate leave during their stand down. A number of Unions, on behalf of Qantas’ employees, claim that stood down employees are entitled to access such leave entitlements. Qantas denies this entitlement.

The stand down

There was no dispute between the unions and QANTAS that the stand downs were anything but lawful. The focus was specifically on whether the stood-down employees were entitled to personal/compassionate leave because of a global pandemic alternatively known as Coronavirus or COVID-19.

No common law right to stand down employees

There is no common law right of an employer to stand down an employee without pay in circumstances where there is no work the employee can usefully perform. At common law, an employee who is stood down is entitled to be paid even though they cannot usefully perform any work.

That is why the Fair Work Act 2009, awards, and enterprise agreements (and contracts of employment) have stand-down clauses that express that employees can be stood down for reasons outside of the employer’s control.

In particular, Section 525 of the Fair Work Act provides as follows:

“Employee not stood down during a period of authorised leave or absence

An employee is not taken to be stood down under subsection 524(1) during a period when the employee:

(a)          is taking paid or unpaid leave that is authorised by the employer; or

(b)          is otherwise authorised to be absent from his or her employment.

Note:    An employee may take paid or unpaid leave (for example, annual leave) during all or part of a period during which the employee would otherwise be stood down under subsection 524(1)”.

In this present matter, Justice Flick quoted (later apologising that due to limited time) he could not add another 100 pages of case law (I might have exaggerated that bit) in going to Application by Building Workers’ Industrial Union of Australia (1979) 41 FLR 192 at 194.  Justice J B Sweeney was there considering an award provision which entitled an employer “to deduct payment for any day an employee cannot be usefully employed” and observed:

“…There was no existing right in the employer to deduct payment in the circumstances set out at common law. Halsbury’s Laws of England (3rd ed.), vol. 25, at p. 468 says:

‘Where, however, a written agreement, which appears on the face of it to include all the terms agreed to by the parties, provides only for the payment of wages or salary at certain times, no implied obligation to find work for the servant will be added, and he is not entitled to damages for not being given employment, although, if he remains ready to perform his services during the period covered by his contract, he is entitled to the agreed wages…”

Stand down provisions, Gaudron J has observed, are invoked as a last resort, and attempt to preserve “as many facets of the employment relationship as possible”:  Foods Preservers Union of Australia and All States Ready Foods (1976) 182 CAR 391 at 392. Her Honour there said:

“The purpose of a stand down clause ought no longer to be seen as an automatic, albeit partial, safeguard for the employer against economic loss. Society now claims and expects reasonable economic security for the wage earner and recent decisions of this Commission illustrate the growing trend to grant stand down clauses only as a variation of an award to deal with specific situations and then as a last resort so as to preserve as many facets of the employment relationship as possible. Where such stand down clauses have been granted, there has also been a tendency to provide some relief to the employee by granting the right to take annual leave and/or to terminate on short notice”.

The object and purpose of compassionate leave

Sections 96 and 105 of the Fair Work Act both are to be found in Part 2-2 of the Fair Work Act, namely that Part of the Act which sets forth the National Employment Standards.

Section 99 provides that if an employee takes such leave, the employer must pay the employee at the employee’s base rate of pay.  Section 107 provides for the giving of notice by an employee to the employer.

Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034 at [344] to [346], (2016) 152 ALD 209 at 266-267 per Katzmann J. The entitlement to take such leave, it may be noted, is not contingent upon obtaining the employer’s consent: Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [8].  Siopis, Collier and Katzmann JJ there observed:

“[8]        The entitlement to take leave is not contingent upon obtaining the employer’s consent, either in advance of taking the leave or at all. It is, however, contingent on the employee complying with s 107. Section 107 imposes obligations on an employee to give his or her employer notice as soon as practicable (which may be a time after the leave has started), and to advise the employer of the period, or expected period, of the leave. If required to do so by the employer, the employee must also give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97”.

Form of income protection

According to Flick, J, the leave entitlement conferred by s 96 is a “form of income protection”. In Mondelez v Australian Manufacturing Workers Union [2019] FCAFC 138 at [148], (2019) 289 IR 29 at 57 (“Mondelez”). Bromberg and Rangiah JJ there observed (and this decision survived appeal):

“[147]    The entitlement to paid personal/carer’s leave involves two components. The first is that ss 96(1) and 97 authorise the employee to be absent from work when the employee is unable to work because of a relevant illness or injury to the employee, or illness, injury or unexpected emergency affecting a member of the employee’s immediate family or household. The second is that s 99 confers an entitlement upon the employee to be paid for such absences. In contrast, while s 352 prohibits dismissal of an employee who is temporarily absent from work because of illness or injury of a kind prescribed by regulation, that provision does not authorise the employee’s absence, nor does it require that such an employee be paid.

“[148]    Section 96(1) of the FW Act must be understood as establishing a statutory form of income protection for all national system employees, other than casual employees. That protection is provided by authorising employees to be absent from work during periods of illness or injury and requiring employers to pay employees as if they had not been absent. The legislative purpose is to protect employees against loss of earnings when unable to work due to relevant illness, injury, or unexpected emergency.

“[149]    However, there are limits upon the entitlement to paid personal/carer’s leave. Section 96(1) itself limits the entitlement in two ways: firstly, it is limited to the number of days of leave that an employee has accrued; and secondly, the rate of accrual is limited to ten days for each year of service. Section 97 limits the purposes for which the leave may be taken. Section 99 limits payment to the base rate for the employee’s ordinary hours of work in the period. The exercise of the entitlement is subject to the notice and evidence requirements imposed by s 107”.

An entitlement to leave whilst stood down

The learned judge noted that the application put the right to stand down and the right to take personal leave were at the cross purposes for the purposes of the application.

In determining that an employee is unable to access personal/compassionate leave whilst stood down, because such leave entitlements are an entitlement on the part of the employee to take leave from otherwise performing the work they are required to perform.

“It is the very characterisation of the leave entitlement conferred by s 96 as a ‘form of income protection’ which presupposes that an employee is in receipt of income. As Qantas has repeatedly submitted, and correctly so, ‘income’ is not being protected if there is no available or required work from which to derive income in the first place”.

What is a “working day”?

GR: I am not sure why this was included in the decision, as is it is “off subject” and is currently subject to a High court challenge.

“When concluding that the “working day” construction of s 96(1) was to be preferred and rejecting a submission put forward by Mondelez that the “calendar day” construction would “lead to serious anomalies and unreasonable results that [could not] have been intended” (at para [135]), Bromberg and Rangiah JJ reasoned in part as follows:

‘[150]    The ordinary, or “working day”, construction of s 96(1) of the FW Act, is consistent with the purpose of providing, within the delineated limits, income protection for all part-time and full-time national system employees. Under that construction, all part-time and full-time employees, whatever their pattern of shifts, are entitled to payments reflecting the income they would have earned had they been able to work. To return to the example of employees who work 36 ordinary hours per week, whether an employee works 7.2 hours every day over five days, or 12-hour shifts over three days, under the “working day” construction, both will be paid at their base rate for the ordinary hours they would have worked if not for the illness or injury. Neither will lose that income. Further, the leave balance for each will be debited with one “working day” for each day of leave taken. The effect of this construction is that, subject to the delineated limits, no employee who is unable to work because of illness or injury will lose income…

‘[155]    The recognition of paid personal/carer’s leave as a form of income protection against loss of earnings during periods when employees are unable to work because of illness or injury supports the “working day” construction. That purpose demonstrates that the “anomalies” suggested by Mondelez are not unintended outcomes, but predictable consequences of the intended operation of s 96(1) of the FW Act.

‘[156]    Mondelez’ submission that it is “inequitable” that an employee who works fewer, longer shifts effectively gets more personal/carer’s leave than an employee who works a standard five-day week cannot be accepted. If both employees are able to take an equal number of “working days” of paid personal/carer’s leave and neither loses income, how can there be inequity or unfairness to one of them? Neither has had to work on the relevant days. Neither has suffered a loss of earnings as a consequence of not working.

‘[157]    Mondelez’ submission that the “working day” construction makes the treatment of the five standard day employee inequitable may also be tested in another way. Illness and injury generally strike randomly. On that basis, there is a greater chance that an employee who works a standard five-day week will fall ill on a day of work and have to take personal/carer’s leave than an employee who works three days of longer shifts. Is it inequitable to the three-day employee that he or she is less likely than the five-day employee to use his or her accrued entitlement to paid personal/carer’s leave? Since the leave is intended to act as a form of income protection during periods of inability to work due to illness or injury, rather than a mere entitlement to paid time off work, there is no inequity.

‘[158]    Mondelez’ submission that the “working day” construction makes the treatment of the standard five-day employee inequitable is, in part, based upon a misconception of the nature of the entitlement under s 96(1) of the FW Act. Mondelez submits that, “An employee who works longer shifts effectively gets more personal/carer’s leave than an employee who works a standard five-day week”. The entitlement of employees under s 96(1) is to ten days personal/carer’s leave for each year of service. It is not an entitlement to take ten days paid personal/carer’s leave. The entitlement to take the leave arises only if one of the conditions in s 97 arises. Therefore, it cannot be said that any employee will necessarily “get” more personal/carer’s leave than others. As we have said, randomness is inherent in the concept of personal/carer’s leave. The leave may only be taken if the employee or a member of his or her family or household is ill or injured or there is an unexpected emergency. There may be almost as many variations in the need to take personal/carer’s leave as there are employees. Under the “working day” construction of s 96(1), each employee accrues an entitlement to the same number of working days of paid personal/carer’s leave for each year of service. That entitlement to leave may or may not eventually be used, and if used, it is uncertain whether it will be used in full or in part, and what part. Therefore, the mere entitlement of some employees to what may amount to a greater number of hours of paid personal/carer’s leave than other employees, will not necessarily translate to a difference in the entitlement to take leave. However, each employee will be equally protected against his or her loss of earnings should the need to take leave arise. That does not seem inequitable.

‘[160]    Mondelez submits that the “working day” construction leads to anomalies when accounting for part-days of paid personal/carer’s leave. Mondelez submits that under that construction, if an employee has accrued a half-day of paid personal/carer’s leave, then he or she is entitled to be absent for a whole shift while using only a half-day of leave. The basis of this argument is unclear….

‘[161]    The purpose of paid personal/carer’s leave is as a form of income protection during periods when employees are unable to work because of illness or injury. That purpose supports the “working day” construction, and demonstrates that the “anomalies”, “inequities” and “unreasonable results” that Mondelez submits are produced by that construction are not only anticipated consequences but are more apparent than real.

Overtime is payable when on a “sickie”

Incredibly, the Court’s decision included overtime into the normal day of a sick or otherwise incapacitated employee:

And, similarly, their Honours further reasoned:

“[195]     The overtime that an employee may otherwise have been required to work assists to explain why the accrual of paid personal/carer’s leave under s 96(1) of the FW Act is expressed in terms of “days” and not “hours”. As has been discussed, the entitlement to take such “leave” is an authorisation to be absent from work in the circumstances described in s 97. Since the basis of the entitlement is an inability to work because of illness, injury or unexpected emergency, the legislative intention must be to authorise employees to be absent, not only for their ordinary hours of work, but also any overtime hours they would otherwise have been required to work. That intention is given effect by the expression of the entitlement under s 96(1) in terms of “days”. In other words, the employee is authorised to be absent from work for the portion of a 24-hour period that would otherwise be allotted to work — irrespective of whether that work is ordinary time, or overtime”.

Back to the stand down

“In circumstances where an employee has been lawfully stood down, and thus in circumstances where there is no work which the employee can perform and thereby derive income, an employee is not entitled to access the leave entitlements conferred by ss 96 or 105. To enable the employee to do so would go against the very object and purpose of conferring those entitlements – namely an entitlement to be relieved from the work which the employee was otherwise required to perform. If there is no work available to be performed by the employee, there is no income and no protection against that which has not been lost. Conversely, to expose the employer to a liability to pay leave entitlements after lawfully having invoked the power to stand down an employee would defeat one of the two principal purposes of standing the employee down – namely, to protect the employer against such claims”.