68-year-old worker claims unfair dismissal due to dialysis treatment

A 68-year-old worker has alleged that his former employer harshly, unjustly, and unreasonably dismissed his employment due to his older age paired with his dialysis treatment.

On 26 March 2024, SMYC informed long-time employee Emad Nakhla that his role had been made redundant and that there were no other roles to which he could be redeployed. He was granted his accrued annual leave, paid five weeks’ notice on the account of his five completed years with the company, and was paid 10 weeks severance in accordance with the National Employment Standards.

Yet Nakhla was unsatisfied with the reasoning for his dismissal and decided to make an application to the Fair Work Commission (FWC), alleging that his dismissal was, in fact, harsh, unjust or unreasonable. He also alleged that his former employer failed to meet its consultation obligations in respect of redundancy in accordance with the Clerks – Private Sector Award 2020 (the award).

At 68 years old, Nakhla commenced his employment with the company on 13 August 2018 in the role of domestic purchasing officer.

In 2019, Nakhla stated that he was working very large hours while he was the sole purchasing officer, as other employees were on maternity leave, and another was redundant.

On 8 February, Nakhla supplied a medical certificate confirming that he had commenced dialysis treatment and would further require treatment, resulting in part-time hours during the week. His working hours were as follows:

• Monday: 8:00am to 1:00pm
• Tuesday: Full-time
• Wednesday: 8:00am to 1:00pm
• Thursday: Full-time
• Friday: 8:00am to 1:00pm

These adjusted hours were accepted by his employer, accumulating to 30.2 hours a week. On the days he received his treatment, he would work from home. His plan was to receive a kidney transplant and eventually return to full-time work.

On 26 March 2024, Nakhla stated that around lunchtime, he was called into a meeting with his managers, who informed him that his employment would be terminated due to redundancy. He noted that his termination took place immediately. He was issued with a termination letter dated 25 March 2024.

He stated that he had no opportunity to discuss, contest or discuss seeking clarification on the decision, nor did he say goodbye to his colleagues. The employer contested that a lunch was organised for him to bid farewell to his colleagues, to which he later agreed that a lunch was indeed had with his higher-ups and some of his colleagues.

Nakhla considered in his evidence that he was seemingly “marched” off the premises, a notion that the employer doesn’t agree with as they gave him no deadline to leave said premises.

The FWC was tasked with discovering whether or not Nakhla’s termination was a case of genuine redundancy.

Commissioner Jennifer Hunt, who oversaw the case, found that the changes made in the operational requirements of the company did mean that Nakhla’s job was no longer required and could, in fact, be delegated to other employees. Therefore, it was found that his employment was not terminated on the basis of his age or health.

“I am satisfied that the [company] no longer required Nakhla’s job to be performed by anyone because of changes in the operational requirements of the enterprise. The reason for Nakhla’s dismissal was not related to his capacity or conduct,” said Hunt.

However, the process and consultation through which the employer chose to notify Nakhla that his employment was ending was not done in the correct fashion.

“The appropriate course of action would have been for the [company] to inform Nakhla of his required attendance at a meeting on 26 March 2024, where he could bring a support person, if he wished to.

“It would have been appropriate for him to have been informed of the [company’s] definite decision to make operational changes and invited to provide his views over the coming days in respect of making his role redundant,” said Hunt.

Therefore, although Nakhla’s employment was not terminated based on his age or medical condition, the dismissal was still deemed harsh as the consultation process was found to be deployed in an inappropriate way.

“Having dismissed Nakhla on 26 March 2024, without consulting with him, was harsh. Having satisfied myself that the dismissal was harsh, by way of the act, I find that Nakhla was unfairly dismissed,” said Hunt.

“I have determined that Mr Nakhla would have earned remuneration in the amount of $1,134.99 in wages and an amount of $124.85 in superannuation at the rate of 11 per cent.”