Former Neighbours star to sue for discrimination – a lesson for small business on sick leave

Former Neighbours actress Kym Valentine is suing the producers of the show for alleged “pain, hurt, suffering and humiliation”, as a result of sex and disability discrimination – and the case has plenty to teach SMEs.

The controversy raises issues regarding the level of responsibility employers have for sick employees, but legal experts say employers are within their legal rights to terminate an employee on a fixed-term contract after three months if they can’t meet the requirements of their job.

SmartCompany contacted both Fremantle Media, the production company behind Neighbours, and management for Kym Valentine but both declined to comment.

Valentine’s management referred to a story in Fairfax which states Valentine has accused FremantleMedia Australia, its legal director Steven Rosser and former Neighbours producers Susan Bower and Neil Kingston of failing to provide “a working environment that was safe”.

She also claims they breached “the relationship of trust and confidence”.

Near the end of her time at Neighbours Valentine reportedly suffered a variety of health problems tracing back to 2008 when she contracted pneumonia. As a result of the pneumonia, Valentine suffered a collapsed lung.

The show’s producer, Bower, then insisted she take a one-month break from the show and Michala Banas was cast in her absence.

In March 2011, Valentine took indefinite leave to treat what was believed to be depression.

Throughout this time Bower had publicly supported Valentine, telling the Herald Sun in April 2011 the network wished her “all the best with her recovery” and said they’d “continue to provide support where appropriate”.

Valentine’s contract had expired at the end of 2011 and it was not renewed. Now, the report claims Valentine is seeking to be rehired in the role.

Bower tells Fairfax he was restricted in his actions. “Kymmy was just too ill to return to do the workload required to finish the episode in time for our contracted delivery date.”

M+K Lawyers partner Andrew Douglas told SmartCompany employers have a responsibility to look after the health of their employees.

“If Kym Valentine, being a normal employee, reported to work and was not fit and healthy enough to perform her role, the employer could refuse to accept that offer to work,” he says.

Douglas says it’s “critical” for employers to diligently ensure all workers are fit to attend work each day, or else they should be sent home at risk of a law suit.

“If work was found to be a substantial cause of injury or stress to the employee, for example if the worker turned up to work depressed and their condition got worse, then this would be grounds for a possible compensable injury claim.”

“If you’re not fit enough to work, you can’t attend. Legally, this is what an employer must enforce,” he says.

In Valentine’s position where her contract was not ongoing, as it had an expiration date, legally she could have been terminated after three months of not being able to adequately perform her role.

“If there is no contract which requires the continuity of work, then after three months an employer can terminate the employment if they’ve appropriately tried to support the employee and they can’t do the inherent requirements.”

“There are some complications which sit around this in anti-discrimination law, but if the employer has offered all reasonable adjustments and there is no continued requirement of work, then their contract can be ceased,” he says.

Douglas says the situation is different if the employee is on an ongoing contract and the laws vary state-by-state.