Fair Work Australia Upholds Abuse of Sick Leave

In a recent decision of FWA, Commissioner McKenna found in favour of the employer when it terminated an employee who  inappropriately claimed sick leave to visit her family interstate.

Facts

The applicant was engaged in August 2009 in an administrative role for a removalist company.  The employer was a ‘small business employer’ for the purposes of the Fair Work Act 2009 (Cth) (the FW Act).  The applicant and the employer were based in Sydney.

On 16 October 2011, the applicant was advised that her sister was getting married on 28 October 2011.  The applicant booked a flight to Perth for Wednesday 26 October 2011 and returning to Sydney on Sunday 30 October 2011 in order to attend the wedding.

Although the applicant had sufficient accrued annual leave, she did not make an application for annual leave to cover her absence, despite an admission by her that the employer had been accommodating in the past.

Unknown to the applicant, the principal of the employer who shared the same printer with the applicant had, by chance, viewed a print out of the applicant’s flight schedule several days before the scheduled flight.

At the time, the employer did not discuss the flights with the applicant, as he expected she would discuss the matter with him in due course and apply for leave.

On 20 October 2011, the applicant was advised by her sister that the wedding had been cancelled but determined not to cancel her scheduled flights.

On Tuesday 25 October 2011, the evening prior to the applicant’s departure to Western Australia, the applicant left work early and attended her local medical centre.  The applicant subsequently received a medical certificate certifying her unfit for work for three days from 26 October 2011, and fit for normal duties from Monday 31 October 2011.

The applicant then left a message on the employer’s telephone advising that she was unable to attend work and that her son would drop in the medical certificate. The applicant then left on her scheduled flight on 26 October 2011 to Perth.

As a result of the applicant’ absence and her failure to apply for leave, the employer reviewed the applicant’s emails (including permanently deleted emails), which detailed the organisation of flights by the applicant and her son.

In the deleted emails, the applicant also berated her son for sending the flight-related emails to her work email address.

Findings

In her findings, Commissioner McKenna considered whether the employee had been dismissed in accordance with the Small Business Fair Dismissal Code (the Code).

The applicant argued that her conduct was not sufficiently serious to warrant dismissal.

Commissioner McKenna, however disagreed and determined that “on consideration of the evidence and submissions, it seems to me that the applicant had chartered a course to take a trip to Perth one way or the other”.

Commissioner McKenna further stated:

“The matrix of circumstances described in those parts of the evidence that were common ground, together with the deconstruction of many of the applicant’s explanations of her conduct under close cross-examination, lead me to conclude it was, considered in the context of the Code, fair for the respondent to dismiss the applicant without notice or warning in circumstances where Mr Leabeater [the principal of the employer] believed, on what I am satisfied were reasonable grounds — going fundamentally to good faith, fidelity and trust — that the applicant’s conduct was sufficiently serious to justify immediate dismissal."

The applicant also submitted that she was genuinely ill due to an ‘infected leg’ and that the employer failed to investigate the medical evidence .  However, Commissioner McKenna determined in favour of the employer in this regard, finding that there was no challenge to the medical certificate or that the applicant had an infected leg.  As stated by Commissioner McKenna,  “the decision to dismiss turned on other considerations” and there was no requirement on the employer to investigate this aspect.

The decision demonstrates Fair Work Australia’s willingness to uphold terminations of employment for small employers when the termination of employees is conducted in accordance with the Code and for a valid reason.

If you have any questions or would like more information about this article, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.