Employer says extended absence during crucial business period justified summary dismissal
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker challenged his termination after taking approved leave to handle urgent passport and visa matters overseas.
The worker argued he kept his employer informed about unavoidable delays in his return, while the employer maintained the extended absence and poor communication during a crucial business period justified summary dismissal.
The case examined important workplace issues around leave management, communication expectations, and what constitutes serious misconduct warranting dismissal without notice.
Background of the case
The worker started at a Southbank hotel in July 2022 as a housekeeping manager. By July 2023, his role changed to part-time housekeeping manager working Sundays, with additional casual shifts as a guest services agent.
In January 2024, he needed to travel to Hong Kong to surrender his Indian passport and obtain a Hong Kong Special Administrative Region passport to maintain his Australian student visa status.
The chief operating officer approved the leave after discussions in early January 2024. There was disagreement about the initially discussed timeline - the worker said he mentioned "three to five weeks," while the chief operating officer recalled being told "three weeks maximum" with a possibility of completing the process sooner. The worker left Australia on 13 January 2024.
Worker’s passport and visa issues
The worker arrived in Hong Kong on 16 January 2024 after brief stops in Indonesia and Malaysia. The process involved multiple steps: surrendering his Indian passport, obtaining a Certificate of Naturalisation as a Chinese National (issued 31 January), and securing a new Hong Kong passport (issued 2 February but collected 12 February). Additional time was needed to update his Australian student visa details with the new passport information.
The communication between the parties became a significant issue. When the chief operating officer messaged asking about his return and noting they were "very short staffed," the worker provided an update but then didn't respond to messages for eleven days. In evidence, when questioned about this gap, he said: "[The worker] was still on the leave and there's no updates."
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The worker's absence coincided with the Australian Open tennis tournament (14-28 January 2024), described in evidence as "the busiest time of the year" for the hotel. The employer had to increase other staff hours, hire additional casual workers, and make alternative arrangements for caretaking duties.
Worker’s dismissal amid passport
On his return, the worker attended a meeting with three managers where he was asked to explain the delay. He wasn't told beforehand that his employment was at risk. The Commission noted:
"The process used to bring about this dismissal was perfunctory. [The worker] entered the meeting without being told that his employment was in jeopardy. He was asked a series of questions. The meeting took between ten and fifteen minutes."
While finding valid concerns about the worker's communication, the Commission determined the conduct didn't warrant summary dismissal: "I do not think his dereliction in his duty to inform his employer reaches the level of a repudiatory breach of his employment contract sufficient to justify a summary dismissal."
The Commission acknowledged both parties' positions, stating: "Given the consequences of the delay for [the employer], the largesse shown by his employer to give him a leave of absence at a time of peak occupancy, together with his failure to respond quickly when he was told by text that [the employer] was 'short staffed' and to keep [the chief operating officer] 'posted' justifies the decision to dismiss him."
The Commission ordered compensation of $4,156 gross plus superannuation, after considering the worker's relatively short service period and his contribution to the circumstances that led to dismissal. The amount reflected deductions for these factors while acknowledging the procedural unfairness in the dismissal process.