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All hell breaks loose... when holiday plan goes awry

When a dispute over annual leave escalates into an unfair dismissal claim.
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All hell breaks loose... when holiday plan goes awry

All hell breaks loose... when holiday plan goes awry

22 January 2020

A small business employer became embroiled in a 'second-rate soap opera' when a dispute over annual leave escalated into an unfair dismissal claim.

Belfast Sinks found itself in the Fair Work Commission after a worker became confrontational and argumentative when his request for annual leave was rejected.

Although the worker's response was 'completely unacceptable', the commission found the dismissal was unjust, unreasonable and harsh because it breached the Small Business Fair Dismissal Code.

And, in a warning to small employers, it noted that the size of the business and its lack of HR expertise was no excuse for procedural failings.

So... what went wrong?

Annual leave requeset rejected

The employee was a sales manager at Belfast Sinks in Perth.

On February 8 he emailed the director of the business requesting annual leave from March 5-8.

The commission heard that another staff member had requested leave at the same time, the director was overseas having surgery, the request was made with minimal notice and the sales manager had already committed to booking accommodation for a holiday.

The director responded on February 18 saying it was "not sustainable, realistic or fair to have a week off with the present staffing". He asked both employees to consider taking long weekends or half weeks.

The sales manager sent an email the following day saying he could not be flexible on days, but was again rebuffed. Several phone calls between the men ensued with the sales manager twice hanging up on the director. The manager then 'poured his guts out' to a colleague who, along with another worker, told him to calm down because there were customers around.

During a third phone call, the director advised the sales manager to go home.

At a phone conference several days later, the director told the sales manager he could take the time off as unpaid leave. While the manager considered this unfair, he emailed the director the next day stating "I must state emphatically that I believe my request for leave to be reasonable. However, I begrudgingly accept your offer to take unpaid leave..."

The director returned to the Perth office on March 1 and a meeting was held. The director wanted to determine if the relationship was salvageable and whether the sales manager had an "ounce of remorse for his actions". However, critically, he did not inform the sales manager of the purpose of the meeting.

The meeting began cordially but soon went downhill, with the director suggesting "let us part as gentlemen and acknowledge that this relationship is over". This followed a discussion about the manager's request for annual leave and why it was declined, the constraints faced by the business, the tone of the manager's email and the use of the word 'begrudgingly', and the manager's perceived commitment to the business.

The men agreed the sales manager would return to work on March 11, but disagreed on the notice period. According to the manager, the situation became hostile and agressive and he left the office to 'research his rights'.

He did not return to work on March 11 and the following day he was emailed a letter of termination.

It stated that he was dismissed for misconduct, insubordination, general misconduct and gross misconduct.

No valid reason

After finding it was not a summary dismissal, the commission had to determine if the ‘Other Dismissal’ part of the code had been triggered.

This required considering:

  • Did Belfast Sinks give the manager a reason for dismissal?
  • Was the reason a valid reason having regard to his conduct or capacity?
  • Was the manager warned that he risked being dismissed if there was no improvement?
  • Did the Belfast Sinks provide the manager with an opportunity to respond to the warning and give him a reasonable chance to rectify the problem(s), having regard to his response.

Deputy president Beaumont found that the director was personally affronted by the manager's lack of contrition and gratitude in the meeting on March 1, and believed he was not committed to the workplace. This was the reason, albeit not a valid one, for ending the employment relationship.

She noted the manager was "completely unaware his continued employment was very much dependent on a display of remorse and demonstration of gratitude toward the director for having made ‘monumental attempts’ to avoid him taking unauthorised leave".

The deputy president said the objective or the purpose of the March 1 meeting was never made clear to the manager, and for that meeting to culminate in a dismissal was a "disproportionate response". At no time was the manager given an opportunity to rebut what the director was asserting.

The manager was not relevantly warned his employment was in jeopardy, nor was he afforded a reasonable chance to rectify the problems.

She found the code had not been complied with.

Second-rate soap opera

The deputy president found that the manager's employment ultimately came to an end because the director felt the manager was not grateful for being allowed to take unpaid leave and had not demonstrated contrition.

She observed that when both men gave evidence it "played out at times like a second rate soap opera, with staring, eye rolling and rather dramatic head shaking".

She said the manager had demonstrated an "unwavering resolve that his request for annual leave was reasonable and could not be dissuaded otherwise; because of this belief he engaged in conduct which was impulsive and puerile."

Nonetheless, there was not a valid reason for dismissal and procedural fairness was not accorded.
The deputy president ruled the dismissal was harsh, unjust and unreasonable.

Reinstatement was not appropriate because "the contempt the two had for each other at hearing was palpable and it would be a fair assessment to say that there is significant personal animosity between them".

She observed that when both men gave evidence it "played out at times like a second-rate soap opera, with staring, eye rolling and rather dramatic head shaking".

The fractious relationship, she said, was due in large part to the "argumentative and uncompromising approach" of the sales manager.

The deputy president anticipated the manager would have remained employed for four weeks and awarded compensation of $5895.

Read the judgment

SQ v Belfast Pty Ltd (U2019/3527) [2020] FWC 43

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