is being late a legitimate basis to terminate employment
TRANSCRIPT
IS BEING
A LEGITIMATE BASIS TO TERMINATE EMPLOYMENT?
Presented by Owen Hodge Lawyers
INTRODUCTIONMany employers simply resign themselves to the chronic lateness of some employees for fear of an unfair dismissal or general protections claim.
But as a recent Fair Work Commission decision makes clear, dismissing an employee for being late is not necessarily “harsh, unjust or unreasonable” under the Fair Work Act 2009. The secret is in the process.
ROONEY V. PICKLES AUCTIONS
The employee in question was a car detailer who was frequently late at work and had received written and verbal warnings over a period of six months. On the morning of 17 June 2015, he slept through his alarm and arrived an hour late.
At a meeting that afternoon the employer asked for an explanation of his lateness and failure to notify his supervisor. The employee was told that his employment was at risk because of his continued poor attendance and was given a chance to make further comments, which he failed to do.
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ROONEY V. PICKLES AUCTIONS
The meeting was then adjourned to allow the employer to consider the employee's ongoing employment. During the adjournment, the employer consulted with its employee relations staff and considered the employee's explanation for his lateness and his work history.
This included the prior warnings relating to his late attendance and other warnings, which related to instances of misconduct. Ultimately, the employer decided to terminate the worker's employment. The employer reconvened the meeting and advised the employee of his dismissal verbally and in writing.
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ROONEY V. PICKLES AUCTIONS
Mr. Rooney was not amused and submitted an application for unfair dismissal to the Fair Work Commission. He produced no documentary support for his claim, but simply alleged during the hearing that his dismissal was “unjust” as it relied solely on the issue of lateness without evidence of other performance problems.
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ROONEY V. PICKLES AUCTIONS
The Commissioner found otherwise, stating that “there was a valid reason for the dismissal related to the repeated failure of the applicant to attend for work at the appointed starting time and without prior notification of lateness.” In fact, the Commission praised the employer’s actions as “commendable.”
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COULD THE DECISION HAVE GONE OTHERWISE?
COULD THE DECISION HAVE GONE OTHERWISE?
Before employers set off to sack tardy workers wholesale, it is important to consider three features of the employer’s process:
The employee was warned about his lateness over a period
of six months;
There was a paper trail of written warnings; and
He had had an opportunity to offer further explanation.
Would a process that took place over five months have been sufficient? What if he had been late only once or twice? What if the cautions had been only verbal? What if an employee offers evidence of illness, disability or parenting responsibilities as a reason for performance issues? These questions should be enough to give employers pause.
If you have questions about whether your workplace performance guidelines and termination processes are sufficient to meet the requirements of the FWA, please call us to schedule a consultation at 1800 780 770. Successful businesses must address performance management without the paralysis that can arise from uncertainty about the requirements of the law.
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