Summary dismissal of an employee for taking unapproved leave upheld

Summary dismissal of an employee for taking unapproved leave upheld

The Fair Work Commission has upheld the decision to dismiss an employee for being absent on unapproved leave after the employee had made various applications for periods of annual leave, which had been denied.

The employee, ‘Mr C’, was employed by E G Fuelco (Australia) Limited (E G Fuelco) as a Console Operator on a permanent part-time basis. His employment was summarily terminated on 19 December 2022, after he proceeded on a period of unapproved leave. Mr C had commenced employment with the Woolworths Group in November 2015 until being transferred to E G Fuelco in January 2021. At the time of his dismissal, he was employed at a fuel site in Canberra and worked his usual shifts on Saturdays and Sundays.

From mid-November 2021, the employee made a series of applications for annual leave, all of which were refused. He initially applied for annual leave for the period from 28 November 2021 to 20 February 2022. He received a text message declining his request due to ‘the café opening and Christmas’. He submitted three further leave applications via the company’s online portal on 20, 25 and 28 November 2021, all of which were declined.

On 10 December 2021, Mr C advised a co-worker that he was unwell and would not be attending work the following day. On the next day, he was contacted by the Store Manager by telephone, who advised him that they intended to schedule a meeting to discuss their concerns about his personal leave absences over the previous six months, which amounted to 17 days.

On 11 December 2021, he advised he was still unwell and that his mother-in-law had been admitted to hospital in a critical condition in her home country of Pakistan. Two days he sent his manager screenshots of flight tickets indicating he was flying to Pakistan that evening.

The manager texted back, asking him, ‘Are you available to talk, please?‘. Mr C replied that he could not talk as he was under stress and tension, asked that he be approved for a period of annual leave, and said that he would hold a discussion with management to sort out his issues upon his return to Australia. A series of texts were then sent between the two over the following week.

On 20 December 2021, Mr C was issued with a Show Cause letter stating that they could not hold his position open indefinitely and gave him the opportunity to provide information on why his employment should not be terminated.

Mr C provided his written response on 28 December 2021, largely focusing on the company declining his various requests for annual leave. He stated that he had a confirmed plane ticket to return to Australia on 7 March 2022. His mother-in-law passed away on 10 January 2022, but he did not inform his employer. On 18 January 2022, he sent a follow-up letter stating that he was awaiting a reply to his response.

By letter of 19 January 2022, Mr C was notified of his dismissal with immediate effect. The letter stated that annual leave during the Christmas period was only granted to employees with extenuating circumstances and that he had breached company policy by leaving Australia whilst his annual leave request had been denied.

In her determination, Deputy President accepted the employer’s claim that they were reluctant to grant annual leave to any employee at Christmas, which is their busiest time of the year. She acknowledged that the illness of Mr C’s mother-in-law may have satisfied the proviso of ‘extenuating circumstances’, but as she noted,

‘… the key issue here is that Mr C did not inform the Respondent of his mother-in-law’s illness at the time he made requests for leave. There is no satisfactory explanation as to why Mr C did not inform the Respondent of these circumstances, at least from the making of his first leave application was refused. He certainly had ample opportunity, being some 27 days from the making of his first leave application to the time he departed Australia”.

Further, the Deputy President did not accept that Mr C needed to remain overseas for the length of time that he did, and therefore, it was unreasonable for him to expect his position could be left unfilled.

His application was dismissed.

C v E G Fuelco (Australia) Limited (U2020/1696)

For queries about developing policies, leave applications, absences, 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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