Software company that sacked employee with cancer urged to settle

A Sydney-based software company which sacked an employee with cancer has been strongly advised by a federal court judge to settle the complex case and avoid trial.

Elliot McGarva had been away from work for more than 10 months with a non-work related cancer when Enghouse Australia terminated his employment.

During his 10 months absence, McGarva had continued to express a desire to work. But when he advised Enghouse he wished to start a return to work process, he received a notice of termination.

Enghouse later suggested to the court the market and the demand for McGarva’s position had changed during his absence, suggesting the company should have looked at a redundancy.

M+K Lawyers partner Andrew Douglas told SmartCompany the main issue in the complex case was the “temporary absence” provisions of the Fair Work Act, which prevents terminating a person’s employment if they are absent from work for a period less than three months.

Based on that provision, Enghouse believed it was within its rights to terminate McGarva.

But the judge said the mere fact that three months had passed did not automatically mean the termination was lawful under the adverse actions provisions of the Fair Work Act.

According to Douglas, when an injury or illness is present, discrimination law applies.

The judge said if McGarva had alleged he was dismissed unlawfully simply because of his illness and the leave he had taken, he would have been absent for a period in excess of 10 months and Enghouse would have been entitled to dismiss him after three months.

However, under discrimination law, the court would need to consider whether McGarva was treated less favourably than a comparable employee without his disability or whether he was subjected to a condition or requirement which he could not meet and which a person without his disability could have met in the same circumstances.

Douglas says the uncontested evidence suggests McGarva would have been fit for the inherent requirements of his job with reasonable adjustments in the foreseeable future and Enghouse had no evidence to the contrary.

“This is somebody they thought was never going to come back,” says Douglas. “It was the wrong person and the wrong process.”

Douglas says that while this is not a strong case, if it went to trial, there is the fair possibility McGarva could have won.

“Terminating someone with cancer is a dumb thing to do. Every court is going to defend that person.”

Douglas says the lessons that employers should take from this case are: to never use the three-month period to mask a redundancy; to never wait to the eleventh hour to move on a termination; and to use a process that acknowledges the risk of the attribute and the tests under discrimination law.

He also says employers should always be mindful of the legal test regarding the capacity of a person to undertake the inherent requirements of their job with reasonable adjustments.

Enghouse Australia was contacted by SmartCompany, but did not respond prior to publication.