Sacked the day she stayed home with a sick child

Kerry Tahi started as a trainee salesperson at QMT Realty in south-east Queensland on 30 May 2016. Her two children were then 11 months and 21 months old. Her hours were soon changed, and in late July they were cut to 15 a week.

On 4 August 2016 she left early to collect her son, who had a fever. When she rang the next day, the owner told her, or suggested, depending on whose account is believed, to take two weeks off, unpaid. The court accepted that the children were well by the following Monday. The court found the leave was the owner’s idea and that Ms Tahi had no real say.

On 1 September 2016 she rang to say one of her children was ill and she could not come in. She was dismissed that day. Under cross-examination the owner agreed that if Ms Tahi had come to work that day, there would have been no need to dismiss her.

Ms Tahi represented herself, and she did not win on every point. Judge Jarrett found she sometimes claimed more hours than she worked, and that the July cut to her hours was made for other reasons, including doubts about her timesheets and a downturn in the business, not because of her children. But as a casual she still had a right to unpaid carer’s leave, and her children really were sick each time. The forced unpaid leave and the dismissal were both found to be because of her family responsibilities, in breach of s 351 of the Fair Work Act.

She was awarded $4,223.75 for lost wages but nothing for hurt feelings. The employer was then ordered to pay a $10,800 penalty to her, and its bid to make her pay its legal costs was dismissed.