Attending a music concert given by a favourite band when you’re supposed to be on personal/carer’s leave is going to land you in hot water and likely lose you your job.
This is the warning from the Australian Payroll Association in the wake of a recent decision by the Fair Work Commission that the dismissal of an employee who took time off to ‘care for his ill son’ was fair and reasonable, given that he was instead photographed at a Wiggles concert.
According to the association, employees must ensure they do not abuse personal/carer’s leave entitlements, and using such entitlements for other reasons may provide grounds for dismissal.
The dismissed employee who brought an application before the Fair Work Commission challenging the action was, at the time, employed as a car detailer at a Toyota dealership in Yarrawonga in Victoria.
Employee said he needed to care for sick son
One day in June 2019, the applicant notified the employer (the respondent in the complaint) that he could not attend work as he needed to care for his ill son. He took one day of personal/carer’s leave.
Later that day, an image of the applicant and his son attending a Wiggles concert circulated on social media.
The employer confronted the employee with the image, and he eventually admitted to attending the concert. He stated that he did not believe the employer would grant him annual leave, so he opted to use personal/carer’s leave instead.
The employer then dismissed the employee with one week’s pay in lieu of notice.
Under the National Employment Standards in the Fair Work Act 2009, an employee is entitled to 10 days of paid personal/carer’s leave each year. However, the Act provides that employees may only take paid personal/carer’s leave for a personal illness or injury, or to provide care or support to a member of their immediate family or household who experiences an illness, injury, or emergency.
False claim was misconduct for three reasons
Based on this, the Commission found that the employee’s conduct constituted a valid reason for his dismissal, commenting that the applicant “acknowledged his wrongdoing only when confronted with irrefutable proof”.
It held that the employee’s false claim amounted to misconduct for three reasons. Firstly, it was a breach of the applicant’s implied duty of good faith, which requires that employees refrain from any act that would likely damage the trust and confidence between themselves and their employer.
Secondly, the commission found that the employee sought to obtain a financial advantage by deception, by claiming payment based on a false assertion. Finally, the employee’s conduct was said to “assert a legitimate right to be absent from work when none in fact exists.”
Given these reasons, the commission was satisfied that the employer’s failure to provide the applicant with an opportunity to respond was insignificant. Ultimately, it held that his conduct in “deliberately misleading his employer was of sufficient gravity to warrant his dismissal.”
In its summation, the Payroll Association said: “Under the National Employment Standards, paid personal/carer’s leave may only be used for a personal injury or illness, or to care for an immediate family member’s injury or illness”.
