Unfair dismissal application of employee who worked during Christmas closedown rejected

Unfair dismissal application of employee who worked during Christmas closedown rejected

The Fair Work Commission has rejected an unfair dismissal application from an employee who ignored his employer’s directions not to work during the company’s mandatory annual Christmas closedown and refused to explain his subsequent absence from work.

The employee, ‘PL’, had worked for Mercer Australia Pty Ltd (Mercer) for two and a half years as a Data Collection – Client Services Officer. Although he was notionally employed at Mercer’s office in Barangaroo, the majority of his data collection and associated work was conducted offline at his residential premises.

Mercer is part of an international asset management and business consulting company that provides superannuation services as part of its broad range of business consultancy and advice services. Mercer and its associated entities have more than 25,000 employees based in 43 countries.

PL’s primary role was to collect superannuation asset data and load it into a computer-based program referred to as Xplan. To perform the role, PL would need to log onto the program daily, whereupon he would be provided with the tasks allocated for him to complete. He regularly communicated with his manager via Zoom on Monday, Wednesday, and Friday of each week.

On Wednesday, 22 December 2021, he sent an email to his manager as part of his normal reporting. His manager responded, thanking him for the report and indicated that he should have a safe and enjoyable Christmas and New Year break. He replied that he intended to work from home during the entire closure period from 23 December to 10 January 2022. His manager replied, advising him he was required to take leave for the employer’s Christmas shutdown

The following day he emailed his manager stating, “I won’t be taking any leave during this office closure period and will be working full time from home as per usual”. Mercer’s Lead HR Manager sent PL two emails, the first of which relevantly stated, “The business is shutdown. You are unable to work this period”. A short time later, the second email stated, “…you are instructed to take leave as follows over the Mercer shutdown period”.

When the business reopened on 10 January 2022, the employer and PL had a series of meetings but could not resolve the issue of his working over the shutdown period. He subsequently was absent from work for the period from 14 to 25 January with no adequate explanation provided to his employer. Despite several attempts to contact the employee during this period, he did not respond.

Ultimately, he was dismissed from his employment on 3 February 2022.

In rejecting the application, Commissioner Ian Cambridge noted,

“… the Commission has been satisfied that there was sound basis for the employer to conclude that the applicant had deliberately failed to comply with numerous reasonable and lawful directives. There has subsequently been no satisfactory explanation or reason provided for the somewhat extraordinary conduct of the employee”.

Mr PL v Mercer – [2022] FWC 2399 | Fair Work Commission

For queries about absent employees, unfair dismissals, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 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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