Double faulting employee loses job

Gluyas v Australian Western Railroad Pty Ltd [2015] FWC 6161 (11 September 2015)

When a self-confessed tennis tragic defied her employer’s refusal for time off to see the Australian Open in January this year, little did she know she was about to go out in straight sets.

The employee had organised her attendance at the Open in the previous October. Her first mistake was she didn’t, at that point, make an application for leave to coincide with the tennis. Instead she waited until the December, immediately prior to the annual close-down of the company, before making a leave application. In the meantime, she had told work colleagues of her intention to travel to the tennis.

On her return from leave over the Christmas period she was advised that her leave without pay request had been refused. At interview she was warned her attendance was required and a failure to attend could have serious consequences including dismissal. Notwithstanding a clear and direct instruction to the contrary, she made her second mistake, and went to the tennis regardless. On her return, she was sacked.

The employee filed an unfair dismissal claim, arguing her employer had the capacity to grant leave without pay. But the Fair Work Commission was unimpressed. On every count the decision was critical of the employee, with particular emphasis on the fact that employee had both plenty of time and opportunity to secure her leave, but completely failed to do so.

The decision relies on an important principle about an employee wilfully acting contrary to instruction. The employee had exhausted paid leave so firstly, the capacity to have leave without pay was entirely a discretionary matter for the employer. And secondly, even if the employee did have paid leave accruals available, the leave still had to be approved. Neither of these pre-conditions were met, so the absence was entirely unauthorised.

The Commission dismissed the application out of hand. This decision serves as a reminder that employees are obliged to abide by the companies policies and procedures when it comes to leave. But more importantly, so long as any instruction is lawful and reasonable in the circumstances, employees must comply. Just because she had spent $6000 on tickets, travel and related expenses to indulge her passion was not the point; she had responsibilities as an employee. She was reminded of them, but went ahead anyway.