Dismissed employee’s claims of family responsibilities rejected by FWC

Dismissed employee’s claims of family responsibilities rejected by FWC

The Fair Work Commission has dismissed the unfair dismissal application of a FIFO who claimed that he could not attend work in Western Australia due to family responsibilities concerning his family in rural Victoria.

The employee ‘CG’ worked as a full-time field services technician working on heavy mining equipment with Citic Pacific Management Pty Ltd (Citic) from 25 August 2015 until his dismissal on 27 April 2022. The technician was a resident of Bendigo in regional Victoria under a 2:1 roster who serviced various mine sites across the Pilbara region. At the beginning of each roster, CG would travel to the mine site by a flight from Melbourne to Perth and then onto Karratha. He would return via the same route, with his flights funded by Citic.

The events that led to his dismissal occurred during the last six weeks of his employment. There was no suggestion that CG was anything other than a skilled and competent employee highly valued by his employer. From around March 2020, the mining industry was heavily impacted by COVID-19, with entry to and from Western Australia severely restricted. Consequently, CG remained in the Pilbara for 17 months, with occasional visits to his wife and young children in Victoria. He also sustained a workers’ compensation injury, which restricted him from attending site between August 2021 and March 2022.

He returned to site on 16 March 2022 and worked the following day. He was then contacted by his wife, who told him that she and her children were not coping with his absence and that if he did not return home immediately, he might not have a marriage or family to return to.

The following day CG approached a mine superintendent to discuss his situation and was informed he needed to talk to the mine manager. CG was aware that only a superintendent or mine manager could authorise an employee leaving the site during their swing and approve early return flights and leaves of absence. Although there was a dispute over what was actually said, Deputy President Peter Anderson formed the view that the superintendent did not approve CG’s return to Victoria, approve a return flight or authorise leave.

Later that morning, CG met with the mine manager, who told him that they could not stop him from taking leave he was entitled to, such as annual leave, but he would need to submit a leave form for approval before leaving site. He was also told that the mine manager would not approve a period of unpaid leave. He was told that he would need to fulfil the requirements of his roster and could not ‘come and go as you please’.

CG claimed that he took what he had been told by the mine manager as approval to leave site. He arranged flights out, giving the impression that his absence had been approved. He said that he started to complete a leave form, but due to work commitments and the rush to get to the airport, this was not finalised or submitted. He departed the site on 18 March 2022 and returned to his home in Victoria.

On 23 March 2022, a superintendent asked CG’s acting supervisor about his whereabouts, whether he had applied for leave, and when he would be returning to site. He could not adequately answer the queries. On 29 March, the superintendent contacted CG, who explained he had returned home for family reasons. He was informed that no leave form had been submitted or approved and that he needed to apply for annual leave. CG indicated that he preferred to take carer’s leave but was told by the superintendent that he had already exceeded the maximum limit by seven days. Later that day, the superintendent sent an email to CG outlining his leave options.

CG did not respond to the email or return to site on his next rostered swing on 5 April 2022. He made no contact with Citic to advise of his attendance or non-attendance.

Following various conversations and the failure of CG to provide requests for leave, Citic terminated CG’s employment for abandonment on 26 April 2022.

In supporting Citic’s decision to terminate C G, the Deputy President noted,

“The employer’s direction to not be absent from work unless on authorised leave was lawful and reasonable. The employer’s direction that he attend work for the roster commencing 5 April 2022 unless leave had been applied for and authorised was lawful and reasonable … The overall conclusion I draw from the evidence is that Mr (G) displayed an indifference to his employment obligations, including to the specific and repeated directions to not be absent without authorisation”.

Campbell Green v Citic Pacific Mining Management Pty Ltd [2022] FWC 2455 (14 September 2022)

For queries about leave requests, family responsibilities, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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