Employer aces unfair dismissal claim by "Tennis Tragic"
Posted on November 05, 2015
As summer approaches, employers can expect an influx of leave applications for various sporting and social events. However, a recent decision highlights that employees who skip work without approval are unlikely to receive any sympathy from the Fair Work Commission (FWC).
In Gluyas v Australian Western Railroad Pty Ltd [2015] FWC 6161, the Applicant applied for annual leave between 19 – 30 January 2015 on 16 December 2014. Because the Applicant was to exhaust all leave entitlements over the upcoming Christmas shutdown period, the employer rejected her application on 23 December 2014.
On 13 January 2015, the Applicant was directed to attend work as normal between 19 – 30 January 2015, and was advised that failure to attend work may result in disciplinary action against her which could result in termination of employment.
The Applicant did not attend work between 19 – 30 January 2015. During this period, the Applicant went to Melbourne and attended 10 tennis matches at the Australian Open.
On 22 January 2015, the Applicant was informed that her conduct was not acceptable and that she was required to attend a meeting on 2 February 2015. At this meeting, the Applicant was provided with the opportunity to show cause why her employment should not be terminated, however her response was not considered to be sufficient and her employment was terminated on 6 February 2015.
The Applicant subsequently claimed that her dismissal was unfair on the basis that the employer did not have a valid reason. Specifically, the Applicant argued that the employer left her with less than a week to make alternative arrangements (as she did not see any rejection email until 12 January 2015, despite having remote access to her emails over the Christmas shutdown period), and that the employer should have let her take leave without pay.
The FWC was reluctant to accept the Applicant’s evidence that she did not see the rejection email until 12 January 2015 and found that leave without pay is at the employer’s discretion. In keeping with the sporting theme, Commissioner Cloghan of the FWC went on to describe the Applicant’s circumstances as follows:
As a definite “tennis tragic”, it would be unsporting to criticise Mrs Gluyas’ decision to attend the Australian Open. Mrs Gluyas considered attending in July and obtained tickets in October 2014. However, in considering, and then making the decision to attend the Australian Open, she had to manage her obligations and responsibilities to her Employer…
Having “boxed herself into the corner” with a number of self-inflicted punches and obtained leave over the Christmas shutdown period, Mrs Gluyas expected the Employer to walk back to the middle of the ring and expected to grant her leave without pay to attend the Australian Open.
It followed that the Applicant’s application was dismissed.
In order to successfully defend claims like this, employers must be mindful that the Fair Work Act 2009 prevents an employer from unreasonably refusing to agree to a request for paid annual leave. Accordingly, a leave policy which is distributed amongst employees and clearly sets out when paid annual leave will/won’t be approved is highly recommended – otherwise it could be game, set, match to the employee!
Please contact a member of Lynch Meyer’s Workplace Relations team if you have a query about employee leave.
