Little “Wiggle” room as an unfair dismissal claim dismissed by Fair Work Commission

by | Dec 5, 2019 | Employment Law

The Fair Work Commission has recently ruled in an unfair dismissal case brought by an employee of a Toyota Dealership who faked a sickie to take his son to see the Wiggles.

On 28 June 2019, Mr Mamo took personal leave to allegedly care for his sick son.

In actual fact Mr Mamo was taking his son to a Wiggles concert.

Upon being approached by his employer, who had been shown a picture of the pair at the concert, Mr Mamo denied that he falsely claimed personal leave but did admit going to the Wiggles concert. Mr Mamo told his management he had not applied for annual leave because he did not believe it would be granted. He made no apology to the company.

Following this conduct his employer terminated his employment.

Mr Mamo brought proceedings in the Fair Work Commission for unfair dismissal.

In considering an unfair dismissal claim, the Commission is required to consider whether the dismissal was “harsh, unjust or unreasonable”.

A dismissal may be:

  1. unjust if the employee was not guilty of alleged misconduct;
  2. unreasonable if the evidence or material before the employer did not support the conclusion;
  3. harsh on the employee due to economic or personal consequences resulting from being dismissed; or
  4. harsh because the outcome is disproportionate to the gravity of this misconduct (the punishment does not fit the crime).

In its ruling, the Fair Work Commission’s Deputy President Alan Coleman said

That falsely claiming personal leave amounts to misconduct scarcely requires an explanation, however I will provide one.

First, claiming personal leave to which one is not entitled is dishonest, and therefore a breach of the employee’s duty of good faith.

Secondly, it seeks to obtain financial advantage by deception, by claiming payment for an absence on the basis of a false assertion.

Thirdly, it asserts a legitimate right to be absent from work when none in fact exists.

Employers should be aware that prior to terminating an employee’s employment, they must ensure that they have a valid reason which is sound, defensible and well founded.  A reason which is capricious, fanciful, spiteful or prejudicial cannot be a valid reason.  Accordingly, a reason for termination must be defensible or justifiable on an objective analysis of the facts.  Whilst the Fair Work Commission does not stand in the shoes of the employer, it will need to be satisfied that the termination of the employee was for a valid reason.

Clinch Long Woodbridge assists employers in defending unfair dismissal appeals in the Fair Work Commission as well as providing strategic advice on possible termination of employees, particularly whether the reasons advanced for a proposed termination are valid and defensible.

Our team can assist you at all stages of the complex process of performance management for staff.

For further information please contact John Simpson jsimpson@clw.com.au and Genevieve Hehir ghehir@clw.com.au

Important Disclaimer: The content of this publication is general in nature and for reference purposes only. It is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.