Unfair dismissal; lateness for work

The Small Business Fair Dismissal Code renders it easier for a small business employer to dismiss an employee than if the employer is not a small business employer. In this extract from  a recent unfair dismissal case, the Fair Work Commission dealt with a dismissal for lateness for work

“Consideration

[11] The dismissal of an employee will not be unfair if it was consistent with the Code (see s 385). Section 388(2) of the Act provides that a person’s dismissal was consistent with the Code if, immediately before the time of the dismissal, the person’s employer was a small business employer, and the employer complied with the Code in relation to the dismissal. I accept Mr Dinnage’s evidence that at the time of Mr Williams’ dismissal, the company employed two employees, and that it had no associated entities. The company was therefore a small business employer as defined in s 23 of the Act at the relevant time.

[12] In my opinion the termination of Mr Williams’ employment complied with the second limb of the Code. First, the company gave Mr Williams a reason why he was at risk of being dismissed, namely his lateness for work. Secondly, the reason was plainly a valid reason based on the employee’s conduct. Thirdly, Mr Kerle explicitly warned Mr Williams that he risked being dismissed if there was no improvement. (As to warnings and the Code, see Law v Linehan, [2018] FWC 57 at [50] and [51]). Fourthly, Mr Williams was provided with an opportunity to respond to the warning. On each occasion that he was warned, Mr Williams could have raised any relevant matters in his defence. Fifthly, Mr Williams was given a reasonable chance to rectify the problem, because after each warning he had the chance to ensure that he arrived for work on time, or, if there was a legitimate reason for arriving late, to explain this to the company. Instead of responding to or rectifying the problem of his lateness, Mr Williams continued to be late. Sixthly, the company did not refuse to allow Mr Williams to have a support person attend discussions relating to the dismissal. There were no such discussions. Finally, the company has provided ample witness evidence of its compliance with the Code. Each of the requirements of the second limb of the Code has clearly been met.

Dismissal not unfair (s 387)

[13] Had I reached a different conclusion in relation to the Code, I would have found that the dismissal was not unfair, taking into account the considerations in s 387.

[14] In my opinion, the company had two valid reasons to dismiss Mr Williams (s 387(a)). The first was his persistent lateness for work. The second was his failure to attend for work at all on 23 September 2020. Mr Williams was notified of the reason for his dismissal by Ms Stanley on 24 September 2020 (s 387(b)). He was not given an opportunity to respond to the reasons for dismissal (s 387(c)) at the time immediately before his dismissal, but I consider that the gravity of the conduct outweighed this consideration, particularly given that he had previously been warned numerous times about being late. There was no refusal of any request for a support person to attend meetings (s 387(d)). And the dismissal related to conduct, not performance, therefore the consideration in s 387(e) is not relevant. The company is a small enterprise and evidently did not have human resources specialists (387(f) and (g)), but I do not consider these matters to carry any significant weight. As to other relevant matters (s 387(h)), I note that Mr Williams was notified of his dismissal by an email, however Mr Dinnage had made efforts to contact Mr Williams directly, and had on previous occasions found him to be unresponsive to his calls and messages. It was not unreasonable in the circumstances for Mr Dinnage to ask Ms Stanley to convey the termination decision to Mr Williams by email.

[15] Finally, I consider that, even leaving aside Mr Williams’ history of lateness, his dismissal for the second valid reason alone was entirely fair. Mr Williams did not come to work. He slept in. He called the company to say he would arrive later. On the drive to work, he pulled over to have nap. Then he drove home again. He did not call Mr Kerle back to say that he was unwell, or that he was not coming to work after all. There is nothing unfair about Mr Williams’ dismissal in these circumstances.

[16] Having regard to s 387, I would not have considered the dismissal of Mr Williams to have been harsh, unjust or unreasonable. The dismissal occurred for good and substantiated reasons. It was not harsh, unjust or unreasonable. It was not unfair.

Conclusion

[17] Mr Williams was dismissed in conformity with the Code. The dismissal was therefore not unfair. Mr Williams application for an unfair dismissal remedy is dismissed.”

Williams v Dinnage Shopfitting Pty Ltd  [2020] FWC 6836 delivered 17 December 2020 per Colman DP