Worker wins compo for being fired after failing to attend work, explaining to boss he’d “been feeling shit bro”

A window and doors installation business that was found to have unfairly dismissed a worker for failing to show up on a job site says it doesn’t know what else it could have done after spending months trying to resolve a tenuous relationship with the employee.

On Friday the Fair Work Commission decided Architectural Project Specialists (APS) was wrong to summarily dismiss one of its installers on May 19 of this year. The employer contacted the worker via voicemail and text message on this date to inform him the business needed a company car and tools returned because “we’re moving on”.

The Commission heard the decision to dismiss the worker was made after he failed to attend work on May 17 and didn’t let the business know about his absence.

The employee told the Commission he had been struck down with food poisoning between May 17 and 19 and this was the reason for his non-attendance, and the company’s managing director said he received a text message from the worker on the the morning of May 18 that read: “Been feeling shit bro not going to make it. Sorry.”

The company says it had previously warned the worker about poor attendance “a hundred times”, and on May 19, after checking in with the employee to ask whether he was going to return to work but not receiving a response, the company sent notification that he was no longer employed by the business.

Fair Work Commission deputy president Susan Booth decided the worker was covered by the Small Business Fair Dismissal Code, as the business had nine employees at the time of dismissal.

She considered whether the actions of the worker made a summary dismissal appropriate, but found under the circumstances, failing to attend work and not being contactable for 24 hours was not serious enough behaviour for an automatic firing.

Booth observed that while the business said the worker’s non-attendance had been a pattern of behaviour over some time, the company was not able to provide evidence of warnings to the employee or instances where his wages were affected by non-attendance.

“It would have been a simple matter to produce time and wages records to substantiate this contention, however, despite APS being given an opportunity to provide more information to the Commission after the hearing, nothing was provided,” she said.

As a result, the Commission found there was “no valid reason” for the dismissal, which she said was “harsh, unjust and unreasonable and therefore unfair”.

Booth decided reinstatement in the role was inappropriate and will now consider the amount of compensation APS will have to pay the worker.

Speaking to SmartCompany this morning, a spokesperson for APS says the business had done everything it could to support the employee, and is disappointed that despite sending “so many warnings”, the decision to dismiss the worker will lead to the company paying compensation.

“From around the start of this year, we thought, ‘this is not going to work out’,” the spokesperson says.

The business says it will take more care in hiring people in future, with the spokesperson claiming the business spent significant time trying to help the worker in his personal life.

“I don’t know what else we could do. I think you just can’t get personal with these things,” says the spokesperson.

SmartCompany was unable to contact the worker for comment this morning.

Keeping records is key

Rachel Drew, a partner at law firm Holding Redlich, says small businesses often face challenges when giving warnings to staff, because it’s typical for the bulk of their communications to be done in person, rather than through formal human resources channels.

“It is more common for warnings and discussions to be had very informally,” she says. 

“But when it comes to the Commission, and providing evidence around communications to do with performance, the employer needs to be able to show concrete evidence.”

If an employer in a small business finds they need to communicate a warning to a staff member about an issue like attendance, emails are your best bet, Drew says.

“Emails include proof that they have been sent as they are marked with the date and time,” she advises.

“Text messages are also okay, but worst case scenario, a business should still be keeping a calendar record that says, ‘we had a conversation [with a worker] about this issue, on this date’.”

Drew reminds businesses that no matter the size of the company, summary dismissals are reserved for the most serious conduct breaches, like fraud, theft or assault in the workplace.

When it comes to absences from work, Drew says previous decisions from the Fair Work Commission suggest an employer must inform a worker that their non-attendance could result in termination before they actually take this step.

“It is a very difficult scenario, but you do have to make sure that absent employee is aware and that they appreciate you are considering a termination,” she says.

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