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Can persistent lateness justify dismissal?

Bill Fitzgerald

TURNING up late for work is something almost everyone is guilty of at least once in their working lives, but if this turns into repeated behaviour, does it hold enough weight to be grounds for termination of employment?

In light of R v Pickles Auctions [2016] FWC 858 (9 February 2016)] it is clear that the Fair Work Commission will support employers who clearly communicate the requirement to be at work on time and provide warnings of termination if breaches continue to occur.

In this unfair dismissal case, the employee of a vehicle auction company had been repeatedly late for work despite the employer issuing numerous formal written and verbal warnings in the months leading up to his dismissal.

On the day he was dismissed, the employee was more than an hour late for work and failed to follow company policy of notifying his supervisor before his scheduled start time. In a meeting held with management on the day, the employee was also unable to provide a satisfactory explanation for his conduct.

The employee was later that day provided with a formal letter outlining the basis for his dismissal which referred to the prior warnings and his inability to improve his attendance over time.

In analysing the case, Commissioner Cambridge commended the employer’s handling of the situation.

The notification of dismissal of the applicant and other aspects of the procedure that the employer adopted to deal with the dismissal contained no identifiable deficiency. There was valid substantive basis for the dismissal of the applicant. Further, the procedural aspects of the employer’s approach to the dismissal of the applicant were proper and just, and should be properly recognised as commendable,” Commissioner Cambridge said.

AREEA principal employee relations consultant Bill FitzGerald says the case demonstrates how following a clear policy and procedure can assist employers in demonstrating that disciplinary action or a dismissal is valid.

“When looking at this situation from a resource industry perspective, punctuality is undeniably important, especially when there are strict schedules in place to transport employees to and from operations. Nevertheless, employees across all roles and sectors have a contractual obligation to turn up to work on time and to remain at work until the allocated finishing time,” Mr FitzGerald says.

“A number of factors will influence the tribunal as to whether dismissals based on these grounds are defensible. These include the knowledge and effectiveness of a policy, consistency in treatment of employees, the specific terms of warnings, and the extent of the lateness and duration between incidents.

“Along with having a clearly communicated policy for this type of misconduct, AREEA members are encouraged to ensure they have a structured warning process in place and that warnings are properly recorded.”

If you need help drafting a workplace policy for breach of employment terms, a procedure for disciplinary action, or any other workplace matter, call your local AREEA consultant on 1800 627 771 or contact us online.

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