Decision paralysis experienced by many decision makers, business owners, board members and directors is no doubt a problem. Especially in situations where an employee continues to engage in behaviour that is improper but falls short of serious misconduct.

Persistent tardiness is an issue that many clients experience with their staff and there is an overwhelming and legitimate feeling by many that due to the risk of an unfair dismissal or general protections claim “nothing can be done”. As with every employment law issue there are risks but it should not paralyse directors and managers into taking no action at all.

In a recent Fair Work Commission (Commission) decision of Todd Allan Rooney v Pickles Auctions [2016] FWC 858 (Rooney case), an employer purported to terminate an employee on the grounds of lack of capacity and improper conduct after an employee habitually arrived late to work. The Commission in this instance found for the employer on the basis that the employee’s dismissal was not “harsh, unjust or unreasonable” under the Fair Work Act 2009 (Cth) (FW Act).

Prior to his dismissal, the employee car detailer had been issued with prior warnings for instances of misconduct and habitual late attendance from his employer. On the date of termination, the employee was an hour late and when given an opportunity to provide a reason for his continuous late attendances, the employee stated that he “thought the time was earlier than it was”.

This was obviously the final straw and the employer terminated his employment.

In making their decision, the Commission stated that the employee had a history of arriving late to work including the date on which he was terminated. Upon noting this, the employer arranged for a meeting with the employee and despite being provided the opportunity to clarify his late attendance, the employee gave an unsatisfactory explanation that he slept through his alarm.

Before making a decision to terminate, the employer considered the employee’s work history and consulted with the company’s employee relations staff. The employee’s history showed he had received six (6) written warnings over a period of four (4) years and had received numerous verbal warnings regarding his failure to attend work on time.

The Commission held that the employee’s persistent tardiness was a valid reason for dismissal, the Commission also commented further that the employer’s approach when dealing with his termination “should be properly recognised as commendable”.

Implications for Employers

This case highlights a few issues:

  • An employee can be terminated for persistent late attendance to work – a one off late attendance is unlikely to be considered serious misconduct but habitual tardiness should be considered serious in nature;
  • Caution should still follow and employers should still find out the cause for the late attendance for example if the reason is for dropping off the kids or other type of family responsibilities any action must be tempered against the backdrop of discrimination and adverse action legislation – it is still proper and important to ensure that an employee is given an opportunity to respond to any allegation of misconduct;
  • Proper processes, procedural fairness and natural justice are looked upon in high regard by the Commission, the more an employer engages in such a process the more likely a case can be strengthened to defend a claim.

Written by:
Jonathan Mamaril
Principal & Director, NB Lawyers – the Lawyers for Employers
07 3876 5111
jonathanm@nb-lawyers.com.au

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