After 42 years at a power station, three days to save his job

Robert Ewen started at the Yallourn Power Station in April 1978, and by 2020 was an assistant unit controller. From December 2018 he was off work, first with a torn shoulder ligament and then with a condition that caused his blood pressure to drop suddenly, so that he collapsed or fainted. When his paid sick leave ran out he used other leave, and in February 2020 he applied for the income protection his enterprise agreement provided.

The company sent him to an independent doctor to assess that claim. The doctor said he was not fit for his safety-sensitive role, and put his chance of being able to return within 12 months at no more than 50%. On 9 June 2020 Mr Ewen received a letter saying, for the first time, that dismissal was being considered. He was given the doctor's report only the day before the meeting. At that meeting, on 12 June, his union asked that he be allowed to use his accrued leave instead. The company refused and dismissed him with immediate effect.

Deputy President Clancy accepted the medical evidence: Mr Ewen could not do his job, and no one could say when he might. That was a valid reason. But the process was 'extraordinarily deficient' for an employee of more than 42 years. Three days, with the report arriving the day before, was not a fair chance to respond. The company had also needlessly and unreasonably refused to let him use leave that his agreement allowed. And by paying out his notice instead of letting him serve it, it pushed his leave payout into a tax year that left him $26,503 worse off.

He could not be reinstated, because he was still unfit for work. Instead he was awarded $61,336: the extra tax, plus the leave, public holiday benefits and superannuation he would have accrued had he been allowed to stay on leave.