Mrs Lynn Gluyas v Australian Western Railroad Pty Ltd T/A Aurizon. (U2015/682) [2015] FWC 6161. CLOGHAN, C. 11 SEPTEMBER 2015

 

This matter reinforces a number of important points:

 

  • Leave without pay is at the discretion of the Employer.
  • An employee is obligated to carry out an employer’s lawful orders.
  • Pursuant to a contract of employment, a fundamental obligation is to turn up for work. Failure to do so is serious and wilful misconduct.
  • It would be unsporting to criticise a decision to attend the Australian Open.

 

The Applicant in this matter was described as a “tennis tragic” which ultimately was her undoing. She applied for leave during the (my description) the summer season of tennis in Australia, including the Australian Open, where she attended between seven and 10 tennis matches.

 

Some leave was approved up to the end of December, but the rest was rejected due insufficient leave to cover the period of her requested absence. Despite this, the Applicant not only proceeded on leave, but took a further two week’s sick leave with certificate.

 

Mrs Gluyas was directed to attend work as normal between 19 and 30 January 2015. Mrs Gluyas was also advised that failure to attend work, as directed, may result in disciplinary action against her which could result in termination of employment.

 

Mrs Gluyas failed to attend work between 19 and 30 January 2015 inclusive (being at the Melbourne tennis).

On 22 January 2015, Mrs Gluyas was informed of her unacceptable conduct in not attending work as directed, and required to attend an interview on 2 February 2015. The correspondence advised Mrs Gluyas that if the allegations were sustained, it could result in disciplinary action up to and including termination of employment.

 

Following the meeting was sent a letter: “Show cause why employment should not be terminated”.  Mrs Gluyas provided a response to the “show cause” correspondence on 4 February 2015. Aurizon advised Mrs Gluyas that it had given consideration to Mrs Gluyas’ response to the Employer’s “show cause” letter, however, her employment was terminated with immediate effect and with five (5) weeks’ pay in lieu of notice.

 

The Applicant’s submission is essentially that the dismissal was disproportionate to her conduct.

 

The Commissioner made the following observations:

 

  • The Applicant concedes that she failed to attend work between 19 and 30 January 2015; and, in doing so, failed to comply with Aurizon’s written direction to attend work between 19 and 30 January 2015.

 

  • Mrs Gluyas concedes that Aurizon may have had a valid reason to terminate her employment.

 

  • Contrary to many applications before the Commission which consist of allegations and denials, this is an application where the Applicant cannot, and does not, deny the conduct which led to her dismissal.

 

  • I find…that Mrs Gluyas failed to attend work between 19 and 30 January 2015 without lawful cause and contrary to a written direction from her Employer. In doing so, I am satisfied that Aurizon had a valid reason to terminate Mrs Gluyas’ employment.”

 

  • Leave without pay is at the discretion of the Employer. Further, it is not mentioned in the Applicant’s contract of employment.

 

  • As a definite “tennis tragic”, it would be unsporting to criticise Mrs Gluyas’ decision to attend the Australian Open…[however] she had to manage her obligations and responsibilities to her Employer.

 

  • While Mrs Gluyas was not summarily dismissed for serious misconduct, I am satisfied, on the evidence, that her refusal to attend work between 19 and 30 January 2015 so that she could attend the Australian Open, was wilful, deliberate and inconsistent with her contract of employment.

 

  • At a very basic level, an employee is obligated to carry out an employer’s lawful orders. Pursuant to a contract of employment, a fundamental obligation is to turn up for work.

 

  • Mrs Gluyas wilfully and deliberately flouted an essential contractual condition to attend work.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.