Long-standing attendance issues culminate in termination: Was it lawful?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a carpenter who claimed he was unfairly dismissed after missing work allegedly due to a neck injury.
The worker argued that prior performance warnings from 2023 had been resolved, and he wasn't given any new warnings in 2024 before his dismissal.
The worker stated that his dismissal came through a text message saying "Do not come back" after he informed his employer about being unable to work.
He claimed the absence was due to a neck injury sustained at work on August 7, 2024, which he said occurred because his employer disregarded medical advice about gradually increasing his lifting capacity over 6-8 weeks.
Evidence presented to the FWC showed that the employer met the definition of a small business under the Fair Work Act 2009.
The company had four employees, and even when counting separate unrelated companies, the total was only twelve employees.
The worker was employed from June 27, 2019, until August 12, 2024. Company records documented his attendance history: 19 days absent in 2020, 29 days in 2021, 10 sick days and 4 days no-show in 2022, and in 2023, 21 sick days, 2 days no-show/slept in, plus 21 instances of late arrival.
The employer issued a first written warning in June 2020, which stated: "This letter is your first warning notice and it is a follow up to several verbal warning already given to you due to your continual lateness most mornings and not turning up for work at all."
The FWC examined evidence of text messages showing late notifications of absences. These included messages sent as late as 1:29 PM with explanations such as "I bloody slept in this morning" and "Just woke up Dave ... Give me a sec and I lol be on my way" at 10:02 AM.
A second written warning issued on February 22, 2023, stated: "This letter is your second warning notice and it is a follow up to several verbal warning already given to you due to your continual lateness and your continuing attendance problems. Your uneven attendance is beginning to affect other parts of your job, making improvement even more essential."
By 2024, records showed the worker had accumulated 3 days sick leave, 23 days with a sore arm (tennis elbow), 19 days light duties, and 5 mornings late.
The final incident occurred on August 12, 2024. The employer had arranged special contractors to work in the factory to help catch up on projects that were falling behind.
The worker was instructed to prepare materials and tools and supervise the work, but he failed to arrive or make contact until 10:33 AM.
The Commission found: "[The worker's] non-attendance and lack of communication regarding his absence constituted wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment."
Regarding the employer's grounds for dismissal, the Commission stated: "The meaning of 'reasonable grounds' in the Code is that the grounds are 'reasonable' when viewed from the standpoint of what a reasonable person would conclude as grounds which are credible, sensible, logical or plausible."
The Commission determined that the employer had complied with the Small Business Fair Dismissal Code. It found that while both written warnings mentioned the possibility of a final written warning, the employer was not required to issue one when circumstances warranted immediate dismissal.
The Commission concluded that the absence on August 12, 2024, was "of significantly increased severity because [the employer] had specifically engaged contractors to assist him in his duties." This made the final incident more serious than previous absences.
As a result, the Commission dismissed the unfair dismissal application, finding that the employer had reasonable grounds to believe the worker's conduct justified immediate dismissal, particularly given the circumstances of the final absence.
