Wednesday 24th February 2016
Too late to work too often ends in sacking
|In today's Workplace Bulletin:|
- ‘See you in court’ threat backfires on worker
|Many employers appreciate punctuality and expect workers to arrive each day on time, if not a little early. So, if you’re going to be repeatedly late for work, it pays to have a good excuse, as this worker at a vehicle auction house in Sydney discovered.|
When the worker was dismissed for his tardiness, he applied to the Fair Work Commission (FWC) for an unfair dismissal remedy.
Can you sack someone just for being late for work, no matter how frustrating that might be to a manager?|
The back story
The employee had worked for Pickles Auctions for almost seven years as a detailer before he was dismissed. During that time his level of performance was described as ‘inconsistent’, in particular, his habitual lateness in attendance for work.
His persistent lateness was coupled with some other unsatisfactory conduct incidents, to the extent that he was issued with written warnings dated; 8 February 2011, 7 February 2013, 11 September 2013, 18 February 2015, 27 March 2015 and 4 May 2015.
The employer provided evidence to the FWC that in addition to the written warnings, the worker was frequently verbally warned about his failure to attend for work at the scheduled commencement time of 8am, and without any prior telephone advice to his supervisor.
On the morning of 17 June 2015, the worker slept through his alarm and at 8:52 am he telephoned his boss to advise that he would be late. The applicant arrived at work at about 9:05am.
Enough is enough
At about 2:30pm, the employer convened a meeting with the detailer seeking an explanation for his late arrival to work and the failure to provide prior notification of his lateness … again. The Commission was told the worker could not provide any explanation for his late arrival and his failure to advise the employer before the scheduled start time of 8am, other than that he thought “the time was earlier than it was.”
The worker was told that his employment was in jeopardy because of his continued poor attendance. The applicant was given an opportunity to offer further comment. The meeting was adjourned in order to allow the employer to consider the circumstances of the applicant’s employment.
|After the meeting, the employer met with personnel management and considered the applicant’s explanation for his late arrival and his failure to provide any notification of lateness prior to 8am. The work history of the applicant, including his previous written and verbal warnings, were reviewed by the employer, who decided that it would terminate his employment.|
At about 3:30 pm, the applicant was advised verbally and in writing of his dismissal, which included references to the previous warnings and included mention that the applicant had been given an opportunity to improve his attendance, but there had been no real change.
The applicant was paid all accrued entitlements together with an amount representing four weeks’ notice.
The worker reacted angrily to his dismissal, swearing at his managers and telling them: “I’ll see you in court”.
On second thoughts …
In his defence, the worker told the Commission that on the day of his dismissal he was unwell and that he should have gone to the doctors and got a certificate, but instead he went to work to help out as best as he could.
The former employee said that if he were reinstated he would go back to work and do the best that he could and that he would be a happy worker.
The worker has not sought nor obtained alternative employment following his dismissal.
Commissioner Ian Cambridge said that the evidence established that the worker was dismissed for reasons relating to poor/late attendance and misconduct. In particular, his repeated failure to attend for work at the scheduled starting time without phoning to advise he would be late.
The approach taken by employer for dealing with the circumstances of the applicant’s lateness and failure to notify on 17 June was “commendable”, said the Commissioner.
He concluded that the worker’s dismissal was not harsh, unjust or unreasonable.
When workers don’t respond
Does this case resonate with your business? Do you suffer undisciplined workers who fail to toe the company line, even after a series of written and verbal warnings?
What is your next legal course of action? Further reprimands, dismissal? Pulling out your hair? What alternatives do you have?
If you decide that dismissal is you best option, having access to the Portner Press Managing Lawful Dismissal, a comprehensive 53-page eBook, will ensure you avoid any legal risk that your dismissal process may attract.
Keep up the good work,
Editor, Workplace Bulletin
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