If you ask any HR team with any organisation or business – dealing with staff issues is a constant battle, the recruitment and retention problem has caused a ripple effect of claims and grievances. Some examples of grievances that NB Employment Law have assisted clients with include:
- Lack of recruitment, leading to promoting a manager to a senior manager role and doubling his direct reports – the senior manager felt frustration with one staff member and in particular struggled with the performance management process which eventually led to the senior manager going on “stress leave”.
- Problems with retaining staff led an employer to continuing to hold onto an employee who was engaging in toxic behaviour in the workplace – this eventually led to an upward bullying claim being made by her line manager.
- An employee being constantly absent from the workplace due to a number of health related and personal issues leading to workloads being increased on other staff members and a general staff shortage.
Absenteeism In The Workplace
In the Fair Work Commission matter of Royall v Aussie Kids Pty Ltd [2022] FWC 2301 (31 August 2022) a centre director for Aussie Kids, a childcare centre had a number of employees absent on a Friday. The reaction by the centre director was to send an email to all staff expressing general “disappointment” and that time off should only be taken for genuine reasons.
The clear implication made by the centre director was that some of the absences were not for genuine illness related reasons.
The response by the Applicant in particular was damning. The Applicant replied via email but also via Tanda, the roster based system the employer utilises. A response through Tanda was effectively public as all employees could see the response provided by the Applicant. She wanted the centre director to know that the email was:
- Hurtful, and that;
- the employees had done nothing wrong;
- considering the circumstances, employees should be commended for their effort not criticised (as flu season and COVID-19 related illness were common place).
Fatal Steps
In the dismissal response provided by the Employer they claim that the employee was not dismissed and furthermore had not served the 6 month minimum employment period.
Not Dismissed
The applicant was called into the office to provide a “please explain” for her actions and that the Tanda message was so public; the rationale being that any disagreement should have been relayed in private. As the applicant showed a lack of contrition, the employer:
- Asked her to go home;
- Cancelled the rest of her shifts that week;
- Took her off access to Tanda; and
- Failed to respond to contact by the Applicant in regards to the above.
The employer claimed that:
- The cancellation of shifts was because there was an excess of staff for that week and any changes to roster for that week were coincidental;
- The lack of contrition was the reason access to Tanda was removed;
- Not informing her of the decision to remove her access was a mere oversight; and
- There was no dismissal because if there was, the usual course of action would be to issue a separation certificate.
Minimum Employment Period
The employer also claimed a further objection in that the applicant had 18 weeks unpaid parental leave and therefore this broke service. In particular, that she was a casual and as such was not a regular and systematic employee.
Findings By The Fair Work Commission
The Fair Work Commission did not find merit in the objections made by the employer and found that unpaid parental leave did not break service and the steps taken by the employer leads to a reasonable assumption that a dismissal had taken place.
Two parts in particular were damning on the employer:
- Cancelling the Applicant’s shifts and removing her access “had the probable result of bringing the employment relationship to an end”; and
- The employer also failed to properly explain why it didn’t inform the applicant and took no steps to advise about the lack of upcoming shifts leading to very poor management decision making.
Maximum Compensation Awarded
As the Fair Work Commission found there was no justification in the dismissal and significant procedural failures the tribunal found there was an unfair dismissal.
6 months pay was awarded to the employee although the final figure was reduced due to the employee’s failure to mitigate her loss.
Learnings
This is a clear tale of how not to deal with absenteeism and conduct issues in general. The employer could have prevented a successful claim at a number of junctures and ultimately failed when they removed access, cancelled shifts and failed to inform the employee they did so. As they did not intend to necessarily dismiss the employee for her actions, the employer was caught unaware their actions were likely to be deemed unfair by the Fair Work Commission. You can understand the intention of the employer however the way they handled it should rightly be criticised and Employers should take heed of the mistakes made here.
This article was originally published here and was republished with permission.
Jonathan Mamaril is a Director with NB Lawyers, the Lawyers for Employers, leading the Employment Law and Commercial Law teams. Jonathan assists employers in mitigating risk and liability and advises clients on all aspects of Employment Law. His focus is on being practical and providing value for clients through education and training to help them avoid headaches in the first place; and when a problem does occur, to deal with it properly so it doesn’t become a larger, more litigious problem.