'There should be some reasonable accommodation and understanding for the circumstances'
Unauthorised leaves can be taken for several reasons, including personal emergencies, sickness, or any other urgent and unanticipated reason.
Generally, employers in Australia have the power to dismiss employees who take unauthorised leaves, especially if the absence is found to be detrimental to the business.
In some cases, employers may also seek damages if losses occur due to the employee’s unauthorised absence.
In a recent case from the Fair Work Commission (FWC), the worker took unauthorised leave even after the employer rejected his application. He argued that he had to take care of an ailing family member.
Background of the case
The worker had worked for the employer for almost 10 years as a console operator at the employer’s retail fuel and convenience outlet in the Sydney suburb of Woolooware. He was engaged on a permanent part-time basis.
On 8 May 2022, the worker returned to work after taking five weeks of approved annual leave. After a few weeks, he sought approval for almost six weeks of annual leave from 10 June to 21 July 2022.
The employer initially refused to approve the request and declined to grant any additional annual leave. However, the worker said that the request was made to “facilitate his travel to Bangladesh” to assist with caring for his mother-in-law, who was “seriously ill.”
The employer then told the worker that it would approve a maximum of two weeks of annual leave.
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On 1 June 2022, the employer formally declined the worker’s request for annual leave, but the worker said that “he had [already] purchased flights to Bangladesh and that the shorter period of two weeks’ annual leave would not provide sufficient time for the anticipated care requirements for his mother-in-law.”
On 12 June 2022, the worker, his spouse, and his daughter flew from Australia to Bangladesh.
The ‘show cause’ letter
On 20 June 2022, the employer sent an email to the worker with a “show cause” letter, asking for justification for why his employment should not be terminated. It reiterated that the worker’s request for annual leave had been declined and that the employer was “unable to hold his position open for an extended period.”
According to records, the letter also advised that the employer treated the worker’s unapproved absence from work as “a breach of contractual obligations.”
A few days later, the worker emailed the employer in response to the show cause letter. He provided copies of medical documentation, including his mother-in-law’s discharge certificate, which confirmed her hospital admission.
It also had proof from a cardiac surgeon who said that his mother-in-law had suffered a stroke and heart attack and that “she needs 24 hours care for the next 16 or more weeks to improve after current situation. And as my knowledge, her daughter & son-in-law [are the] only [ones] available to [look after her] post-stroke.”
However, the worker’s medical documentation was not accompanied by any explanation, elaboration, or response to the show cause letter. The employer then dismissed the worker.
HRD previously reported about the case of a worker’s dismissal over “unapproved absences” to get tested for COVID-19. In another case, an employee was dismissed for leaving work to save his marriage and tend to his family.
Was there unfair dismissal?
The FWC ruled that the employer had “reasonable grounds” to dismiss the worker since he defied a lawful directive.
“There should be some reasonable accommodation and understanding for the circumstances involving the illness of [his] mother-in-law and the need to travel to Bangladesh,” it said.
“However, it appeared from the evidence that the [worker] had essentially decided that he would take the amount of leave of his choosing, irrespective of the employer’s directive, and without any preparedness to discuss any compromise. Consequently, [his] actions were in direct defiance of the reasonable and lawful directive of the employer and would logically establish a valid reason for his dismissal,” the FWC said.
Additionally, the worker’s application was filed more than a month after his dismissal, and the law only requires filing within 21 days.
When the worker argued against his belated claim, he said he had “insufficient internet access.”
The FWC did not accept his excuse and said, “It was clear [he] had the time and capacity to respond to letters sent to him about his absence.”
“Even without an internet connection, [he] could make phone calls to the Fair Work Commission.”
Ultimately, the FWC ruled that there was no unfair dismissal in this case.