A spoonful of sugar didn't help this medicine go down

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A spoonful of sugar didn't help this medicine go down

Sacking an employee for working out of hours while on carer's leave was not a valid reason for dismissal, the Fair Work Commission has ruled.

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Sacking an employee for working out of hours while on carer's leave was not a valid reason for dismissal, the Fair Work Commission has ruled.

However, the worker's refusal to follow a lawful and reasonable direction to provide information about his activities did justify termination.

Background 


Shea Munro was employed by Wilmar Australia as a seasonal worker in June 2012 and was made permanent in September 2013. He was summarily dismissed in September 2016.

Wilmar operated a large network of sugar cane mills across northern Queensland. Mr Munro worked across several roles, including fork lift operator, engineer's assistant, general mill worker and roving driver.

Prior to starting work with Wilmar, Mr Munro operated his own business offering cane slashing, lawn mowing and agricultural equipment repairs. 

He decided to expand his business into cane harvesting and secured a contract with Wilmar.

The Commission heard Mr Munro assured Wilmar that he could safely work for Wilmar while also running his own business. He said he would employ a casual employee to fulfil his duties on the days he was rostered to work for Wilmar.

Alleged misconduct


In August Mr Munro applied for a week's paid carer's leave as his wife had been hospitalised due to pregnancy complications.

However, during this period, Wilmar discovered he had been working in his own business harvesting cane. 

Mr Munro told the Commission that he cared for his family in the evening and any work he did had been during his own free time.

He was issued with an Intolerable Breach Notice and a list of conditions to comply with. These included submitting weekly time sheets indicating time spent working in his own business.

Mr Munro refused to accept the terms, saying he believed it was an attempt to make him resign.

He wrote to the company saying it was leaving itself open to a general protections or unfair dismissal claim.

"You are also leaving yourself and Wilmar Sugar open to a discrimination claim unless you impose the same conditions you are seeking to impose on me, on every other employee, including management within Wilmar Sugar, who engages in a second job or other vocation…"

Mr Munro told his employer he had not broken any laws, and that he would returning to his night shift duty on September 9.

Employer's argument


Wilmar submitted that Mr Munro engaged in serious misconduct by conducting work on days for which he had been granted paid carer’s leave.

It also said he had failed to follow a lawful and reasonable direction by refusing to disclose the extent and timing of his activities when working for his own harvesting business.

Wilmar said it needed the information to monitor and manage potential fatigue and safety issues.

Ruling


Commissioner Hunt found Mr Munro's claim for carer's leave was legitimate.

She said Mr Munro had cared for his partner during the period he was rostered for work; that is, the evening.

"In my view, it is no different from a worker seeking paid carer’s leave to care for their ill or injured child during the day when the worker is ordinarily at work, and upon the other parent returning home from work and caring for the ill or injured child, the worker leaving the home to run errands, play sport, or even work a second job.

"Where these other activities occur outside of the worker’s ordinary hours of work, and there is adequate care for the ill or injured family member, this should be of no concern to the worker’s employer.

"I find no misconduct and therefore no valid reason in respect of the carer’s leave issue."

However, she found Mr Munro's refusal to provide the information was a valid reason for dismissal.

She said Wilmar had a duty of care to ensure Mr Munro was not unduly fatigued.

"Ultimately, the information sought by Wilmar was for an appropriately legitimate purpose; to allow it to be aware of his secondary commitments, and allow for real-time consideration of the competing work commitments...

"Mr Munro was given several opportunities to provide the information sought, and on each occasion he vehemently resisted the invitation."

The Commission ruled the termination had not been harsh, unjust or unreasonable.

Mr Shea Munro v Wilmar Australia Pty Ltd (U2016/12200) [2017] FWC 2493
 
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