Alwyndor Aged Care wrongly sacked mentally ill employee, Employment Tribunal finds
An aged care worker was jailed for nearly three months — and didn’t tell his boss. Then he went to India while on sick leave — and his boss found out through Facebook. So he was sacked. But the Employment Tribunal has found his firing was unfair.
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A man who was sacked by an aged care home after spending 81 days in jail without telling his boss — and then went on holiday to India while on sick leave — was unfairly dismissed, the SA Employment Tribunal has found.
The man, whom The Advertiser has chosen not to name, won his case on appeal after Alwyndor Aged Care was found to have dismissed him without adequate investigation.
He was working on night shift for the Holdfast Bay Council-owned care home, at Hove, in February 2016, when he was imprisoned for 81 days for a traffic offence.
The tribunal heard he had mental health issues, of which his employer was aware, and that he had sometimes adopted “inappropriate coping mechanisms” including “repeated driving of vehicles while unlicensed to do so”.
But Alwyndor was not made aware of the prison sentence and wrote to him on March 1, 2016 to inquire about his absence.
His wife subsequently told his employer what had happened — and an application for unpaid leave was lodged.
The man met with his general manager after his release in May and entered into a written agreement to return to work on June 8 with day shifts.
He was given a first and final warning.
During the meeting, the man asked for leave without pay from June 18 to July 18 to attend a family wedding in India but the request was denied later that day.
However, the man’s GP provided a sickness certificate to Alwyndor covering the period June 7-17 and then another for June 18-July 18, 2016.
His employer discovered, through Facebook posts, he had travelled to India while on sick leave, and suspended him on his return, pending an investigation.
He was then called to a meeting where he was questioned about his illness and refused to answer detailed questions because he felt he had been accused of lying.
After being asked to leave the room, he returned to be told he had been sacked.
An unfair dismissal claim was rejected by the Industrial Relations Commission in 2017 — despite Alwyndor Aged Care agreeing the man was genuinely mentally ill.
The commission found he had not been forthcoming with his employer and that his employment had been terminated on the basis of the available evidence.
But the Employment Tribunal has now found Alwyndor Aged Care’s investigations into the man’s conduct were “not as full and extensive as they should have been” and he was not given reasonable time to respond.
It ruled that he should have been advised to seek confirmation from his doctor as to his illness and given “a day or two” to reflect before any action was taken
The case is set to return for a resolution between the man and Alwyndor Aged Care.