The employee, a pharmacy assistant at Priceline, asked to take off three weeks in January 2023 as unpaid FDV leave to care for her nine-year-old son during the school holiday period.

The employee alleged that her son had been assaulted by her ex-husband and therefore could not be left in his care.

Following the employee’s request, her employment was terminated due to “previous performance issues” and “absenteeism”, according to the employer.

She had been formally warned in November 2022 after swearing at a co-worker in front of customers.

Decision

The FWC found the employee was terminated because she had requested time off – not because of previous misconduct.

The evidence indicated the employee did have a situation that warranted a request for time off. The employee was struggling to deal with her son allegedly being emotionally and physically abused by his father and was requesting unpaid leave until her son was able to return to school at the end of January.

The FWC found the employee’s dismissal was not “sound defensible or well-founded” but rather “harsh, unjust and unreasonable.”

The employee was not consulted nor given the opportunity to come to any arrangement after requesting time off. Section 387 of the Fair Work Act (FWA) provides details of what is classified as harsh, unjust or unreasonable and sets out the steps employers need to take to avoid an unfair dismissal.

Because there was no valid reason for the employee’s dismissal related to her capacity, and as she was not notified of a valid reason or given any opportunity to respond, this was found by the FWC to be an unfair dismissal.

The FWC also ruled that the dismissal was not reasonable under the circumstances. Even though there was an incident in the past where the employee had been formally warned, the FWC found the misconduct was not connected to the dismissal, which the FWC considered was more about the request for leave than any prior misconduct.

As the employee did not request to be reinstated, the FWC calculated a payment of compensation instead.

Learnings for business

It is critical for businesses to have a firm process in place when terminating staff to ensure it does not warrant an unfair dismissal claim. Section 387 of the Act provides detailed steps to ensure that an employee is not harshly, unjust and unreasonably dismissed and businesses must consider these steps before taking any action to terminate an employee’s employment.

In this case, the business dismissed the employee months after a formal warning. The employee was asking for time off due to a sensitive home situation and was not given any opportunity to discuss the request (or to influence the proposed termination of her employment as the FWA requires).

The FWC found the previous warning and request from the employee for time off were not linked and therefore a fair and reasonable process was not followed. The employee was not given any warning regarding her previous performance before her dismissal, nor was she given an opportunity to respond and provide a reason for her conduct.

How the Victorian Chamber can assist

The Victorian Chamber’s expert workplace relations consultants can help you navigate terminating an employee’s employment, including by giving you advice about the risks of the termination, procedural advice about how to carry out the termination and can help you draft the necessary letters and other communications to help the employee understand what is happening and to act as evidence of what took place if the employee does bring a claim.

The Victorian Chamber also provides first-class training. Our Managing Termination, Redundancy and Unfair Dismissals program will familiarise you with your legal obligations as an employer, while also allowing you to share your knowledge and gain from the experiences of others.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

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