Court fines business who sacked employee with cancer to avoid paying sick leave

A Perth panel beating business which sacked a long-term employee to prevent him from taking sick leave after he was diagnosed with cancer has been fined and criticised by the Federal Court.

Hi-Lite Automotive has been fined $35,000 and its co-owners Pasquale Minniti and his wife fined $6500 over the issue.

The court found the employee of the panel beating business, a spray painter who had been with the company for nine years, was owed around 500 hours’ sick leave when he told his employer he had cancer.

In response, the court found the employer placed continuous pressure on him to resign for over a month. It was found the employee did not resign, and the employer told him he did not believe there was anything wrong with him and subsequently dismissed him. At one stage, the court found the employer threatened to physically throw the employee off the premises. 

In 2012, Minniti told SmartCompany the claim was false.

“I would never sack a guy with cancer,” he said at the time. “At the end of the day, I am not worried about it as I have not done anything wrong.”

But the court found Hi-Lite Automotive failed to pay the employee sick leave, wages in lieu of notice or annual leave entitlements with a total value of around $16,000.

Following legal action by the Fair Work Ombudsman, Justice John Gilmour handed down the penalty and criticised the behaviour.

“There was nothing inadvertent about Minniti’s conduct in this case. He did not proceed upon a mistaken view of the law,” the judge said.

Statements were presented to the court in support of Minniti’s good character, and the Court heard he viewed “his past actions with regret, but with honesty”.

Gilmour said the conduct warranted a “significant deterrent penalty”.

“The need for general deterrence in the present case is strong and the law should mark its disapproval of the respondent’s conduct and impose a penalty at a level which will serve as a warning to like-minded employers,” the judge said.

Gilmour said “the workplace rights sought to be protected in this case were fundamental and were all in the NES [National Employment Standards].”

“The right to take personal leave [in this case sick leave] is a very basic workplace right. The NES [also] provides that accrued untaken annual leave should be paid when the employment ends.”

Gilmour also noted that the employee had a right to five weeks’ notice of termination, or payment in lieu, also provided for under the NES.

The court found while the employee has since received about $16,000 for entitlements he was originally denied, the judge noted it been “an arduous journey”.

Minniti was contacted by SmartCompany this morning and he said it should be clear there are “two sides to a story” and that he had been respected in business for 25 years, but declined to comment on the finding.

Fair Work Ombudsman Natalie James says the court has signalled a warning to employers that similar behaviour would not be tolerated.  

Minniti was contacted for comment this morning but no reply was received prior to publication.

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