FWC orders Reinstatement for Worker Dismissed following absence caused by Employer

The Fair Work Commission (FWC) has ordered the reinstatement of a Darwin worker who was arrested and held in custody before being suspended without pay by his employer and eventually dismissed because of the absence.

The arrest of the worker was not related to his employment as a storeperson/driver.  He was held in custody between 1 May and 10 July 2017.  The company initially granted leave without pay for the absence.  While in jail, the worker’s direct manager visited him and told him he could return to work when he got bail.  On his release, the worker attended the workplace and advised the company’s Director of Sales, NT and Nth Qld, he was ready to return to work.  He also disclosed information about the circumstances of his arrest and his intention to defend the charges.  The company subsequently wrote to the worker on 15 July to suspend him without pay pending the outcome of the charges against him.

On 19 October, the company wrote to the worker by regular post and via email and advised him of its intention to terminate his employment on the basis the company could not continue to cover his absence from work.  The company asked in the letter that the worker respond before 31 October with any reason why the company should not proceed with the dismissal.  As it turned out, the worker did not read the company’s letter until after 31 October.

The FWC found the worker’s absence was caused ‘directly by the actions of [the employer] in standing [the employee] down without pay pending the outcome of the court proceedings’.  As such, the absence could not form a valid reason for dismissal.  The company also expressed concerns about the wellbeing of other employees but the FWC found there was no evidence the concerns were either justified or put to the worker such that he could respond to them.

Commissioner Bisset ordered the employee be reinstated to his former position, with continuity of service, but declined to award remuneration for lost wages noting that, at the time of his dismissal, the employee had been stood down without pay pending the outcome of his court case. The Commissioner concluded that, had the employee’s employment not been terminated when it was, it was likely he would have continued to be stood down without pay for a further period therefore “no order to restore lost pay could have meaning”.

Lynch v Reward Supply Pty Ltd T/A Reward Hospitality [2018] FWC 969 (22 February 2018)