Owen Hodge Lawyers discusses lateness and if and how it can contribute to a termination of employment.

1. IS BEING
A LEGITIMATE BASIS TO
TERMINATE EMPLOYMENT?
Presented by Owen Hodge Lawyers

2. INTRODUCTION
Many employers simply resign themselves to
the chronic lateness of some employees for
fear of an unfair dismissal or general
protections claim.
But as a recent Fair Work Commission
decision makes clear, dismissing an employee
for being late is not necessarily “harsh, unjust
or unreasonable” under the Fair Work Act
2009. The secret is in the process.

3. ROONEY V. PICKLES
AUCTIONS
The employee in question was a car detailer
who was frequently late at work and had
received written and verbal warnings over a
period of six months. On the morning of 17
June 2015, he slept through his alarm and
arrived an hour late.
At a meeting that afternoon the employer
asked for an explanation of his lateness and
failure to notify his supervisor. The employee
was told that his employment was at risk
because of his continued poor attendance
and was given a chance to make further
comments, which he failed to do.
“
”

4. ROONEY V. PICKLES
AUCTIONS
The meeting was then adjourned to allow the
employer to consider the employee's ongoing
employment. During the adjournment, the
employer consulted with its employee relations
staff and considered the employee's explanation
for his lateness and his work history.
This included the prior warnings relating to his
late attendance and other warnings, which
related to instances of misconduct. Ultimately,
the employer decided to terminate the worker's
employment. The employer reconvened the
meeting and advised the employee of his
dismissal verbally and in writing.
“
”

5. ROONEY V. PICKLES
AUCTIONS
Mr. Rooney was not amused and submitted an
application for unfair dismissal to the Fair Work
Commission. He produced no documentary
support for his claim, but simply alleged during
the hearing that his dismissal was “unjust” as it
relied solely on the issue of lateness without
evidence of other performance problems.
“
”

6. ROONEY V. PICKLES
AUCTIONS
The Commissioner found otherwise, stating
that “there was a valid reason for the dismissal
related to the repeated failure of the applicant
to attend for work at the appointed starting
time and without prior notification of lateness.”
In fact, the Commission praised the
employer’s actions as “commendable.”
“
”

7. COULD THE DECISION HAVE
GONE OTHERWISE?

8. COULD THE DECISION HAVE
GONE OTHERWISE?
Before employers set off to sack tardy workers wholesale, it is important to consider three features of
the employer’s process:
The employee was warned
about his lateness over a period
of six months;
There was a paper trail of
written warnings; and
He had had an opportunity to
offer further explanation.
Would a process that took place over five months have been sufficient? What if he had been late
only once or twice? What if the cautions had been only verbal? What if an employee offers evidence
of illness, disability or parenting responsibilities as a reason for performance issues? These questions
should be enough to give employers pause.

9. If you have questions about whether your
workplace performance guidelines and
termination processes are sufficient to meet
the requirements of the FWA, please call us
to schedule a consultation at 1800 780 770.
Successful businesses must address
performance management without the
paralysis that can arise from uncertainty
about the requirements of the law.
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WE CAN HELP
1800 770 780
ohl@owenhodge.com.au