FWC: Is it unfair? Employer argues he took unauthorised absences
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim filed by a worker against his former employer, a furniture company. The worker, who was employed as a showroom manager, alleged that his dismissal on 15 December 2023 was unfair. The employer argued that the dismissal was justified due to the worker's unsatisfactory performance.
In this case, the worker started employment with the employer in November 2018 as a showroom manager in Queensland. He was later promoted to managing a high-level showroom in Fyshwick ACT in April 2021, which also required him to manage a clearance store in the same location.
The worker signed a new employment contract in connection with this role, which required him to comply with the company's policies and procedures, including the use of their time and attendance system.
Communication issues and unauthorised absences
The employer raised concerns about the worker's poor communication with the showroom team and management. It was alleged that the worker regularly left the showroom without explanation or permission, with absences ranging from 30 minutes to longer durations. The employer also claimed that the worker failed to promptly return calls from the corporate head office on the days he was rostered to work.
In response, the worker argued that his team knew where he was and that his absences were justified, as he was visiting other stores he was responsible for or engaging in recruitment activities.
He also pointed out that he was contactable via mobile phone when out of the showroom. The worker gave evidence that there were only two occasions when he did not inform his assistant manager of his whereabouts because he was involved in recruitment activities.
Timekeeping issues and HumanForce records
The employer relied on the worker's HumanForce records, which allegedly showed irregularities in his attendance. The worker was questioned about his use of the time and attendance system, including emails sent to all managers across the business about the importance of scanning on and off each day.
The worker explained that there were instances where he could not split his shift in the system when he was unwell and needed to work for part of the day and be absent for the other part.
The FWC noted that the employer's senior managers had approved any variations or missing timesheets in the HumanForce system. The records did not support a finding that the worker left work early 3-4 times per week without a justifiable reason, as the employer had claimed.
Procedural fairness and dismissal process
The worker was verbally advised of his dismissal on 15 December 2023 during a telephone meeting that lasted less than 15 minutes.
He complained that he was not given sufficient details to provide a proper response to the allegations and that he was not given a reasonable amount of time to do so.
The FWC agreed with the worker, stating:
“I agree with the [worker] that he was not given the detail that was required for him to be able to provide a proper reply, nor was he given a reasonable amount of time to be able to do so.”
“Had the [worker] had a proper opportunity to consider and reply to the allegations, it is conceivable that he could have explained some or all of the timesheet issues to the satisfaction of the [employer]. However, he was not given the opportunity to do so,” the FWC added.
Is it unfair dismissal?
“I am not satisfied the matters relied on by the [employer] were sufficiently serious as to warrant his dismissal absent a warning of the type required by s.387(e) of the Act,” the FWC said.
“In relation to signing off at the end of his work day, I am satisfied the evidence does not show the [worker] was leaving work early 3-4 times per week. The evidence is clear that any discrepancies in the timesheets or failure to sign off were reviewed by a senior manager who must have accepted the [worker]'s explanation at that time. As a result, I do not accept that the [worker’s] start or finish times were only discovered by the [employer] on 13 December 2023,” the FWC said.
The FWC also found that the employer did not give him sufficient notice to respond to the allegations against him. “I am not satisfied that the [worker] had a proper opportunity to respond to the [employer]'s concerns. The telephone meeting on 15 December did not include any specificity as to important information such as the dates the [worker] was alleged to have left early.”
“Had he been provided with dates and a reasonable period of time, he could have checked his own records to ascertain his whereabouts. The meeting itself was only around 15 minutes in length. This was not a proper opportunity to respond to the matters raised by the [employer],” the FWC said.
