Dismissal upheld: Personal leave not for Wiggles concert

In a small victory for common sense, the Fair Work Commission (FWC) has upheld the dismissal of an employee who fraudulently claimed personal leave to take his son to a Wiggles concert, with Deputy President Alan Colman commenting it “scarcely requires an explanation” that “falsely claiming personal leave amounts to misconduct”.

The car detailer had been employed for less than a year when he accessed a day of personal leave on a Friday in June, having called work that morning claiming his son was ill. Later that same day, a co-worker showed one of the managers a social media post containing a photograph of the detailer attending a Wiggles concert with his child.

The next week, management addressed the detailer about their concern he had falsely claimed personal leave the previous Friday, which the detailer initially denied. The worker only confirmed the truth after management made it known they were aware of the social media post, saying he had sought personal leave instead of annual leave, because he had anticipated a request for an annual leave day would have been denied. The detailer failed to apologise and his employment was subsequently terminated. His employer explained they had lost trust in him but still observed a week of notice, paid as wages in lieu.

The detailer filed for unfair dismissal arguing his false claim for personal leave was not serious enough to warrant termination. Deputy President Colman of the FWC disagreed, pointing out that falsely claiming personal leave was firstly, “dishonest”; secondly, “it seeks to obtain financial advantage by deception”; and, thirdly, “it asserts a legitimate right to be absent from work when none in fact exists”. The Deputy President also noted the detailer had only acknowledged his wrongdoing when confronted with “irrefutable proof”.

Deputy President Colman found the false claim for personal leave to be a “clear case of misconduct giving rise to a valid reason for dismissal” adding that a “reasonable person in [the employee’s] position would have understood that”. He also confirmed an employee “should not have to be warned not to take make false claims for personal leave”.

The Deputy President went on to determine that the process adopted by the employer prior to dismissal was fair, commenting further that the employer’s representatives had “bore their frustration graciously” when the employee failed to appear for the Hearing. In dismissing the detailer’s application, Deputy President Colman added it was “unacceptable that an applicant should fail to appear at the hearing of [their] application without offering any explanation or apology”.

Mamo v Robjan Pty Ltd t/a Yarrawonga Toyota [2019] FWC 7900 (22 November 2019)