Worker on sick leave not forced to resign

By Jeff Salton on May 3rd, 2017

young girl sitting on a chair arm covering her face

In 2016, an Early Childhood Teacher at a NSW pre-school took sick leave for anxiety and depression following an internal investigation that found she had engaged in ‘low-grade bullying’ at her workplace.

During her time of absence, the worker produced a number of medical certificates saying she was unfit for work. On 1 December 2016, the worker emailed a certificate stating she was unfit for work from 1/12/16 to 16/12/16. The pre-school’s director replied:
“Sorry to hear you are still unwell. Please take all the time you need to recover. As I have already allocated you to the Outdoor Teacher position for next year, I would really appreciate you letting me know your plans as soon as possible, so we can prepare for your return together.”

On 5 December 2016, the worker’s solicitors wrote to the pre-school and its director saying the pre-school’s actions had caused their client to suffer a psychological injury and that in order for her to resume her employment the workplace needed to be free from the current risks to her health and safety.

The letter stated that the pre-school would need to “take a number of actions to remediate the matters which have caused the injury, and to guard against its recurrence. To set these matters out will require a meeting between representatives of the Pre-School and of our client, and it is reasonable of us to ask that this meeting be held no later than 12 December 2016. Should the Pre-School not be prepared to attend such a meeting and to take subsequent timely remedial action, our client will be left with no alternative other than to resign, which we will take on our client’s behalf to the Fair Work Commission as a constructive dismissal under s.386(1)(b) of the Fair Work Act 2009.”

The pre-school replied that the worker was still an employee of the pre-school and it expected her to return to her position when her sick leave expired. It also explained the organisation’s policies and procedures for formally raising an employee grievance.

On 14 December, the worker presented a further medical certificate saying she was unfit for work until the final day of the school term – 20 December.

The pre-school replied saying it looked forward to seeing her at work in the new year.

Further, on 16 December 2016, the pre-school wrote to the worker, saying “… the Management Committee request that you provide them with an indication of when you will likely be fit to return to your full duties. The Pre-School is willing to pay for a full medical examination to assess your fitness to return to full duties, or you may continue to consult with your treating psychiatrist. Please advise method of preferred by Tuesday, 20 December.”

On 20 December 2016, the last day of term, the worker was certified fit for work but her solicitors wrote to the pre-school saying that because discussions hadn’t taken place about the worker returning to the workplace without posing “an unreasonable risk to her wellbeing”, and that the pre-school’s “complete disregard of our request has sent to our client a very clear message that the Pre-School has no intention of doing anything at all to ensure our client’s health and safety at work.”

The solicitors said she was left no option but to resign. The worker was therefore seeking an Order at the Fair Work Commission (FWC) for six months’ wages as compensation.


Commissioner Johns said there was no doubt an employer had a duty to provide a safe workplace both at common law and under statute. There were also statutory duties to consult. However, there was nothing to be found in the correspondence sent by the [pre-school] on 12 and 16 December 2016 that indicated that it intended to ignore those obligations.

“It is true that in its responses to the applicant’s letter of demand sent on 5 December 2016 the [pre-school] did not directly engage with the request for a meeting, but that is quite different from refusing to comply with statutory obligations to consult about workplace health and safety issues,” he said.
Commissioner Johns said the worker had a number of options or alternatives to resignation – she could have invoked the pre-school’s internal Staff Grievance Policy or taken steps under a Dispute Settlement Procedure (DSP).

“In addition to activating the DSP, the applicant could have, if she thought she was being bullied herself, made an application to the Commission for Orders to stop bullying. Further, she could have raised concerns she had about her health and safety in the workplace with the SafeWork NSW,” said the Commissioner.

He added that resigning in the face of a failure to respond to a meeting request was not an understandable response.

“It could not be fairly said the [worker] had no other choice other than to resign.”

Because there was no dismissal by the employer, the application for an unfair dismissal remedy must be dismissed, Commissioner Johns said.

Confidence in your procedures

Are you confident that you and your organisation can help a worker adjust to the workplace after time away, whether through illness or injury? As you have read, it can be a delicate subject and very confusing if you’re underprepared.

The information contained in the Health & Safety Handbook, written in plain English by the experts at Holding Redlich, will help you create or check that your policies and procedures will facilitate a smooth return to work for employees.

Having the right systems in place will ensure you cover yourself legally and that you also provide the returning employee with the best possible chance of integrating back into the workforce.

Order your copy of the Health & Safety Handbook today on an obligation-free trial and test it out for yourself.


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