Dispute stems from employee's multiple requests for leave because of health issues
The Fair Work Commission (FWC) has dealt with a dismissal dispute between an employee who alleged dismissal and an employer who said he resigned.
The employee said he applied for leave on multiple occasions but was denied, saying that the purpose was for medical procedures and recovery. The employer denied his leave requests due to a project milestone deadline and it said the employee was a “key contributor” to meeting the project timeframe.
The employee was a design manager working for the employer for almost two decades. He said that he had accrued significant annual and long service leave entitlements, so he requested two weeks of annual leave to “investigate some health concerns.” His leave request was denied because it “overlapped with a material milestone of a project where the [employee] was a key worker” and he made multiple requests after that.
The employee said he continued to press for the leave and explained the reasons for it but the employer said “We’re at an impasse. You should rethink your position”. When he asked for leave again, the employer said, “we’re done then.”
In another conversation, the employer raised “mutual separation as a solution.” The employee then remarked, “if it is over, make it over effective immediately.” The employee then took it as a dismissal and filed before the FWC.
The FWC said the employee repeatedly requesting leave “did not demonstrate his intention to leave employment contract.” The employee said that he “didn’t wish to lose his job” but the employer kept using phrases like “impasse” and “sorting out the terms of your exit” which indicated termination.
In its decision, the FWC said it “understands” the employer’s “frustration,” stating that with “a looming deadline,” the employer was “no doubt frustrated and surprised by the [employee’s] insistence of taking leave at a critical time.”
Still, the FWC found the employee was terminated at the employer’s initiative. The FWC found the employer denied an opportunity for the employee to actualise his intention to take the leave or change his mind, describing the employer’s action as “precipitous.”
As of date, the FWC has listed the matter for further conference as a conciliation attempt. The decision was handed down on 17 January.
