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Barrister’s clerk files Fair Work claim against former employer
A Melbourne-based clerking service is facing an application from a former clerk, alleging that it terminated her employment despite having workplace rights to adjustments in her working schedule in relation to her disability and that she was treated adversely due to her disability.
Jerome Doraisamy
Last Thursday (14 July), Louise Stary, a former clerk at Parnell’s Barristers, filed an application in the Melbourne registry of the Federal Circuit and Family Court of Australia against her former employer — as well as Matthew Parnell and Sharon Noorman, a married couple who run the clerking service — after her employment was terminated in March of this year.
“It is clear that you cannot perform the essential requirements of your role now, or for the foreseeable future. This constitutes a valid and lawful reason to cease your employment,” the respondents wrote.
“Your current medical condition is not work related and we have no legal obligation to accommodate your medical restrictions, which currently fall well short of allowing you to perform your full duties.”
The letter lists that Ms Stary had been absent from the offices since late December and “numerous days prior to this” throughout 2021 and that the respondents “cannot continue to run the business without another clerk, which is yourself”.
The letter went on to say that the respondents have been “very accommodating” and would like to continue to do so; however, “we desperately need the person in your role to be performing their duties on a full time basis, in the office”.
In her filed claim, alleging dismissal in contravention of a general protection, Ms Stary said that she has a disability in the form of interstitial cystitis.
This disability, she claimed, was “clearly articulated” prior to commencing employment, and in “pre-employment representations”, Mr Parnell supposedly said he would not treat her adversely in employment because of the disability and that reasonable adjustments to work from home when necessary would be agreed to by the clerking service. Such alleged representations were relied upon, Ms Stary said, in accepting the employment.
She went on to outline that she routinely worked from home two days per week in the second half of 2021, and then in early January, she contracted COVID-19. From 5 January until 18 March, she said, she was “temporarily absent due to the illness and related symptomatic complications”, for which she said she “provided notice of the temporary absence and medical certificates to evidence the illness”.
The claim is alleging breaches of the Fair Work Act, including that the respondents took adverse action against Ms Stary by terminating her employment “because she had a workplace right to adjustments in relation to the disability” and a breach of s31 of the Australian Consumer Law, in that the second respondent allegedly “engaged in misleading and deceptive conduct” by treating Ms Stary adversely due to her disability and by refusing to allow her to work from home.
Ms Stary is seeking compensation and a pecuniary penalty against the respondents.
Speaking to Lawyers Weekly, Kelly Workplace Lawyers principal Joseph Kelly said: “It is sad, especially in the context of COVID and long COVID [sic], that some employers need to be reminded that it is not lawful to terminate employees because they need to take time off due to illness.
“While employers may sometimes feel that they alone bear the burden of the COVID pandemic, we can never forget the physical impact this illness has on employees and the need for employees to follow medical advice over the desires and demands of their employer.”
In a statement, Parnell’s said that it is aware of the claim being brought by Louise Stary.
“It denies that it took any unlawful adverse action against Ms Stary and will be defending the proceeding,” it said.
“As the matter is now before the courts, we don’t propose to make any further comment regarding the matter.”
A directions hearing has been set for 23 August 2022.
The case citation is Louise Stary v Parnell’s Barristers Pty Ltd & Ors.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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