Employee who took sick leave dismissed for dishonesty rather than for exercising a workplace right

Published 11 September 2016

A Court has recently found that a company did not take adverse action by dismissing an employee who threatened to take sick leave after having his annual leave request denied.

On 21 April 2014, Mr Stephen Byrne, a mine worker for Anglo Coal, applied for two days of annual leave for the night shifts on 24 and 25 April 2014. Mr Byrne’s manager refused the request on the basis that too many other employees were taking leave on those days and the company required him to work. Following this, Mr Byrne advised his manager that if his annual leave wasn’t granted, he was going to be sick anyway and get a medical certificate.

On 24 April 2014 Mr Byrne fell legitimately sick with symptoms of asthma exacerbation and a lower respiratory tract infection. He was prescribed antibiotics and issued with a medical certificate stating that he was unfit to work on 24 and 25 April.

On his return to work, Mr Byrne was required to attend a meeting where he was questioned why, if he was absent from work on account of sickness, he had originally applied for annual leave. It was put to him that he had been dishonest in taking personal leave on 24 and 25 April and that he was not actually sick. Anglo Coal terminated Mr Byrne’s employment on the basis that his conduct had irreparably damaged and undermined the employment relationship.

The CFMEU, on behalf of Mr Byrne, commenced proceedings claiming that Anglo Coal had taken adverse action against Mr Byrne by dismissing him from his employment because he exercised his workplace right to take personal leave.


The majority of the Full Court of the Federal Court (with Justice Buchanan dissenting) found that Mr Byrne was not dismissed because he exercised a workplace right. It was found that at the time of terminating Mr Byrne, Anglo Coal were not aware that he was legitimately sick and that he was dismissed because he was dishonest and his conduct irreparably broke down the employment relationship.

Justice Rangiah found that whilst the decision might be unjust as Mr Byrne had been legitimately sick when he took personal leave, there was no evidence that Anglo Coal had terminated Mr Byrne because he took personal leave. Justice Rangiah noted that a better option for Mr Rangiah would have been to file an unfair dismissal application where it would have been inevitable that he would have been reinstated to his position at Anglo Coal.

The Court stated that if Mr Byrne had not threatened that he was going to be sick following the rejection of his request for annual leave, Anglo Coal would not have been able to take any action against him.

Read the full decision here

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