The applicant was employed as a console operator for EG Fuelco for nearly 10 years on a permanent part-time basis.

On 8 May 2022, the operator returned to work after taking five weeks of approved annual leave. Two weeks later, the employee formally requested to take a further period of leave for six weeks commencing in June.

Initially, EG Fuelco declined to grant the employee a further period of annual leave. However, once the operator advised that the request was primarily for the purpose of visiting his ill mother-in-law located in Bangladesh, EG Fuelco granted the operator a maximum period of two weeks leave.

The employee communicated that he had already purchased flights and a two-week period of leave would not be sufficient considering the caring requirements for his mother-in-law. Despite this, the operator commenced leave and flew to Bangladesh.

While the employee was away on unauthorised leave, EG Fuelco emailed a show cause letter stating that the employee’s request for annual leave had been declined and the business was unable to hold the employee’s position open for an extended period. The letter stated that the business was treating the period of absence as a breach of contractual obligations and the applicant was invited to respond outlining why his employment should not be terminated.

In response, the operator sent EG Fuelco his mother-in-law’s medical documents which stated that she required 24-hour-care for the next four months. Other than this, the operator did not provide any further explanation or response.

Following this, EG Fuelco sent the employee a termination of employment letter which confirmed the termination as of 24 June 2022.

On 20 July 2022, the applicant returned to Australia and contacted the Fair Work Ombudsman (FWO) regarding the circumstances of the dismissal. He was informed that unfair dismissal applications have a timeframe of 21 days which had lapsed.

On 30 July 2022, after EG Fuelco’s HR department failed to reconsider his termination, the applicant filed a claim for unfair dismissal, 15 days late.

Decision

Ultimately, the FWC held that EG Fuelco had reasonable grounds to dismiss the operator as his actions clearly went against the reasonable and lawful directive of the employer.

Additionally, the application was lodged 36 days after dismissal. The Commission accepted that the applicant may have faced communication difficulties while travelling overseas but could clearly respond to emails and failed to provide a valid explanation as to why he could not access the FWC website or contact someone in Australia to do so for him.

As a result, the FWC was not satisfied with the applicant’s point of view.

Learnings for business

This case highlights the importance of developing a thorough set of workplace policies and procedures that clearly stipulate the expectations of employees and processes that must be followed within the workplace. This ensures for clarity and consistency when handling both minor and complex situations.

EG Fuelco appropriately followed its workplace policies and procedures which led the business to a fair, just, and reasonable dismissal.

How the Victorian Chamber can assist

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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