Penglase v Allied Express Transport Pty Ltd  FCCA 804 (20 April 2015).
The applicant was employed by the respondent as an Account Manager. The applicant took sick leave and presented a medical certificate upon her return to work. The respondent requested the applicant attend a company doctor to ensure that she was fit for work. The company doctor reported that the applicant was suffering anxiety and stress disorder but was fit to return to her normal duties.
Shortly afterwards the respondent’s State Manager told the applicant that, based on the company doctors report, the applicant could not perform her duties as Account Manager. The State Manager offered the applicant the option of either performing a telephonist role with a reduced salary of $30,000.00 pa, moving to the position of Sales Executive with a significant increase in workload or resignation. The applicant was told to decide by close of business that day.
The applicant attended her doctor claiming she was anxious and distressed. The doctor provided her with a certificate of incapacity and she completed a Workcover claim. Approximately six weeks later the applicant returned to work where she was told that her position had been made redundant, effective immediately.
The applicant claims that the respondent breached s.340 of the Fair Work Act as it dismissed her because of her Workcover claim, breached s.351 as it dismissed her because of her physical and mental disability being her medical condition, and breached s.352 because of her temporary absence from work because of illness or injury.
The Court found that the respondent did not make the applicant redundant because of her mental illness or because she took time off her illness, and accepted the evidence that the redundancy resulted from a restructure. However the Court found that the respondent changed the applicant’s position to the applicant’s detriment due to the applicant being unwell in breach of s.340(1)(a) and s.351(1).
The respondent was ordered to pay the applicant $5,940 as a pecuniary penalty.