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Unfair to dismiss an employee for being late?
If you run late “Unfair to dismiss an employee for being late?” should be compulsory reading for you. In Sydney last week, peak-hour traffic was halted on the Harbour Bridge after protesters glued themselves to a citybound lane. It’s safe to say that the traffic chaos caused many workers to clock into work late that morning. And we’d all agree that these workers were free of blame for doing so. But even in an unforeseeable circumstance like this, can an employee be dismissed for being late?
If an employee doesn’t have a history of being late to work, it’s highly unlikely they would be dismissed for a once-off instance of tardiness. But if they were, the employee could make a solid case for an unfair dismissal. Especially if their lateness was caused by something as unforeseeable as a spontaneous protest.
What criteria is used to determine an unfair dismissal?
Regarding unfair dismissals due to lateness, it’s important to consider how they are viewed by the Fair Work Commission. To determine if a dismissal is unfair, the Commission requires that:
- The employee was dismissed, and
- The dismissal was harsh, unjust or unreasonable, and
- The dismissal was not a case of genuine redundancy, and
- Where the employee was employed by a small business, the dismissal was not consistent with the Small Business Fair Dismissal Code.
Most employers, of course, are likely to treat a once-off instance of lateness much more kindly than a repeated pattern of lateness. Recent unfair dismissal cases illustrate how habitual tardiness factors into employer decisions to dismiss employees. Let’s look at one such case.
Car detailer claims unfair dismissal after being terminated for habitual lateness
In 2015, a car detailer was dismissed by his employer for arriving at work an hour late. The employee had slept through his alarm and had a history of arriving late to work. He had also received warnings for unsatisfactory conduct.
Between 2011 and 2015, the employee had been issued six written warnings regarding his performance. Also, several verbal warnings for being late to work. In these instances, the employee had breached company policy by failing to notify his supervisor that he would be late.
On the morning of 17 June 2015, the employee notified his employer that he would be late almost an hour after he was due to turn up. He arrived at work shortly thereafter, and later that day, the man’s employer met with him seeking an explanation for why he was late. The employee answered that he thought ‘the time was earlier than it was.’
Why did the employer decide to dismiss the employee?
The employer considered several factors when deciding to dismiss the employee. Firstly, the employee’s history of lateness and misconduct. Also, the explanation he offered for being late. And, his failure to provide appropriate notice that he would be late. The employer then made the decision to terminate the employee’s employment. He was paid his statutory entitlements and four weeks’ notice in lieu.
After being informed of his dismissal, the angry employee told his employer that he will “see you in court.” He thereafter lodged an unfair dismissal application to the Fair Work Commission.
The employee’s unfair dismissal application is rejected by the Fair Work Commission
During his FWC hearing, the man offered no documentary support for his claim of unfair dismissal, simply alleging that the dismissal was ‘unjust.’ The employee argued that the decision relied solely on the issue of lateness, without evidence of other performance problems.
The FWC, however, disagreed. It found that the employee had been dismissed for a valid reason. Namely, his repeated history of attending work late, without providing prior notification. The employee’s documented history of misconduct also factored into the ruling.
The FWC also praised the employer’s actions as ‘commendable.’ It stated that the employer’s procedure ‘to deal with the dismissal contained no identifiable deficiency.’ The employer was found to have done their due diligence by:
- Notifying the employee about the reason for his dismissal
- Providing the employee with several prior warnings regarding his lateness and misconduct, which were documented. Also, offering him the opportunity to respond when any formal complaint was raised.
- On the day of the employee’s termination, advising him of the seriousness of the matter. Also, giving him the opportunity to offer an explanation or defense for his lateness. And instead of making an immediate decision to terminate his employment, took adequate time to consider all factors.
What can employees learn from this unfair dismissal case?
In the case of the car detailer, his repeated lateness was clearly a factor that determined his dismissal as justified. But similarity important to the decision was that the employer followed proper protocol to deal with the problem of the employee’s habitual lateness.
Multiple warnings to the employee were documented, and he was given the right of reply in each case. The manner in which the employee was terminated was also thorough and well-considered. However, what happens if an employee is dismissed for repeated lateness, but their employer doesn’t follow proper protocol? This next case helps provide an answer.
Casual machinist wins unfair dismissal case after losing her job for repeated lateness
In 2013, a casual machinist lodged an unfair dismissal application to the Fair Work Commission. The employee had been dismissed for what her wedding gown retailer employer cited as ‘excessive lateness and inappropriate behaviour.’
During the hearing, the employer asserted that the employee had five instances of lateness within two months. The employer also asserted that it gave the employee ‘warnings’ for her tardiness. However, it also admitted that these were better described as ‘comments.’
How did the Fair Work Commission arrive at a decision?
As it had less than 15 staff, the employer was therefore defined as a small business. This meant that the Small Business Fair Dismissal Code applied to the case. The Commission found that the employee’s dismissal was ‘consistent with that Code.’ However, it also stated that the employee’s ‘continued failure to ensure that she attend work on time’ wasn’t sufficient to ‘justify immediate dismissal.’
The ‘comments’ that the employer made to the employee regarding her lateness were a critical factor that the Commission considered. It found that the employer failed to communicate any ‘consequences of repetition’ if the employee were to appear late again. In other words put on notice if your late again, you will be dismissed.
The Commission also highlighted that the employee was given notice for dismissal a week after her last occasion of lateness. It was therefore found that the case was not accurately described as one of immediate dismissal, according to Commissioner Matthew O’Callaghan.
“I do not consider instant dismissal … over a matter unrelated to timekeeping could be sustained on the basis of earlier timekeeping concerns,” said O’Callaghan during the hearing.
An employer must provide clear warnings before an employee can be dismissed
The aforementioned cases provide us with two key takeaways regarding dismissals due to lateness. Firstly, that an employee must generally have a history of repeated lateness in order to be fairly dismissed. Secondly, the employee must have received clear warnings from their employer communicating the seriousness and consequences of their habitual lateness.
In some workplaces, it may not be clear if turning up late is a serious contravention of policy. Afterall, many employers take a flexible approach to work times. It can therefore be confusing for some employees to know what constitutes being late. And, if it’s a serious problem for which they can be potentially dismissed for.
If this sounds like your workplace, it’s advised to ask your employer what is expected of you in terms of your start and end times. If applicable, you should also ask them about expectations around taking breaks. And if you do turn up late without providing prior notice, ensure you heed any warnings your employer gives you.
Contentious lateness issues
As indicated early a lot of lateness issues can be complex, the following is a list of some of those, that have lead to dismissal whether fairly dismissed or unfair dismissed.
- Sick children
- Feeling sick because of pregnancy
- Partner is late, coming home from night shift, didn’t have a car.
- Slept in because I worked a double shift yesterday. (common in aged care)
- Confused on start times because of roster changes
- Accidents on the road and rail
- Domestic violence and related family issues (quite common)
- Chronic fatigue and long COVID related illness.
- Slept in related issues (alarm didn’t go off, etc)
If you combine these reasons with general absenteeism, then a dismissal may be in the wind. Most work places have some flexibility, some give and take. Go out of your way to make up the lost time. This is not an excuse to be late again. But it does show respect to your employer and co workers who are turning up on time. The excuse of everybody’s else is late so I will be. It might be ok, unless the musical chair stops at you. Then you are arguing its unfair to dismiss me.
Conclusion to Unfair to dismiss an employee for being late?
I hope the article was helpful to you. Have any questions or concerns give us a call. We are A Whole New Approach P/l., we are not lawyers. AWNA are leaders in workplace commentary, representation, works rights, employment rights. All Fair work Australia regime matters, including workplace investigations, forced to resign, casual employee related issues.
Articles Unfair to dismiss an employee for being late?
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One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.