No breach of general protections: lateness, not illness, led to dismissal

A Field Geotechnician has failed to convince the Federal Circuit Court her dismissal, actioned the day after she returned from a day’s absence in October 2019, breached the general protections provisions of the Fair Work Act 2009, with the Judge theorising she might have had greater success questioning the fairness of her termination if she had pursued an unfair dismissal claim instead.

The Technician was dismissed on 30 October 2019, after being called into a meeting when she arrived over an hour late, having also been absent from work the day prior. Whilst the employee claimed she had been ill on 29 October and had texted the receptionist to advise she was still unwell and would therefore be late on 30 October, Judge Driver assessed the Technician failed to satisfactorily explain the reason for her absence or lateness during the dismissal meeting. He further noted the Technician did not attempt to submit a medical certificate (for 29 October) until the day after her employment was terminated.

Although a number of factors – including “time recording” issues and the Technician’s use of the company vehicle to move house whilst on personal leave earlier in the year (which she had initially denied) – had contributed to the Technician’s dismissal, Judge Driver found it “tolerably clear that the immediate cause of the termination was [the Technician’s] late arrival at the workplace on 30 October 2019 following her absence on leave the previous day”. “This was not satisfactorily explained at the termination meeting”, he added.

Judge Driver concluded:

“…neither party has persuaded me that the real reason for [the Technician’s] dismissal was otherwise than was stated in the termination letter, namely “unsatisfactory attendance”. The critical fact leading to the decision that [the Technician] should be dismissed was her lateness on 30 October 2019. This was important to the Company as [the Technician] had been expected to attend a client worksite and a client had, on an earlier occasion, complained of her late attendance.”

Judge Driver also accepted that the employer was unaware the Technician was temporarily unwell when they terminated her employment. Furthermore, the employer conceded under cross-examination that if he had known the Technician had attempted to advise her lateness on 30 October 2019, he might not have dismissed her. Judge Driver commented that showed the employer to be “a reasonable person” who “would probably not have dismissed [the Technician] if he had been given an explanation for her lateness on 30 October”.

Finding the Technician was dismissed because of what the employer viewed as unsatisfactory attendance, as stated expressly in the termination letter, Judge Driver determined that the employer was “not on notice of [the Technician’s temporary illness] at the time of the dismissal” meaning “that was not the reason for the dismissal”. Judge Driver noted the Technician had “not established that her dismissal was for a reason otherwise than as stated in the termination letter and, more generally, she has not established that her dismissal was for a prohibited reason under the Fair Work Act. This means that her claim must fail”.

In addressing confused arguments over whether or not the Technician had completed her “probationary period” at the time of her dismissal, Judge Driver found that she was “not on probation at the time she was dismissed”, however, he noted that, “it is not obvious that anything of substance flows from this finding”. In this respect, Judge Driver suggested the Technician, “might have made a claim of unfair dismissal, having regard to the dismissal process and the expiry of her probation period but such a claim would have been a matter for the Fair Work Commission to consider, not this Court”.

Despite Judge Driver’s assessment that the employee may have had better grounds to pursue an unfair dismissal claim, as her employment was terminated after little more than three months’ service, she was therefore dismissed within the minimum employment period and would have been ineligible to file an unfair dismissal application when her employment ended in 2019.

Loukis v Compaction & Soil Testing Services Pty Ltd [2021] FCCA 281 (8 July 2021)