Missed out on bonus by taking sick leave

August 2024

Chantel* has three young children. She also has type 1 diabetes. Her employer pays its workers an end of year bonus in accordance with a Staff Collective Agreement. The bonus is calculated for each staff member by deducting the number of paid and unpaid sick leave days taken from accrued leave in the previous financial year.

Chantel received very reduced bonuses in some years and no bonus at all in other years. This was because she needed to take leave on various occasions due to her own personal circumstances, in addition to caring for her children at various times.

Chantel lodged a complaint of disability discrimination and carers discrimination with ADNSW. She alleged that her employer discriminated against her on the ground of disability and her responsibilities as a carer when it failed to provide her with an end of year bonus.

ADNSW investigated the complaint.

Chantel said the bonus payments scheme was unlawful because employees who took leave because of their responsibilities as carers or because they were ill were paid reduced bonuses or no bonus at all. Chantel said this amounted to indirect discrimination.

The employer said that the scheme was not unlawful because the Staff Collective Agreement had been approved by the Workplace Authority Director, in accordance the Workplace Relations Act 1996 (Cth) and it could not therefore contain discriminatory terms.

The employer also said that the agreement was soon to expire and it would remove the bonus scheme at this time. The employer also argued that Chantel had not suffered any real detriment.

Chantel disagreed with her employer. The matter was resolved at a conciliation conference when the employer agreed, without any admission of liability, to make a payment to Chantel, equivalent to the bonus Chantel alleged she should have received.

* Name has been changed to protect the privacy of the individual