Victory for manager fired over AWOL holiday

Cases

Victory for manager fired over AWOL holiday

An IGA manager who took unauthorised leave has won her unfair dismissal case, after a tribunal ruled her request for time off had been unreasonably refused.

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An IGA manager who went on holiday despite being refused leave has won her unfair dismissal case and compensation of $13,400.

The Fair Work Commission criticised her employer's tardy response to her leave application, and found her request had been unreasonably denied.

Background


Adriana Stevens worked as a duty manager for a small supermarket chain, Horsley Park Supermarket, trading under the name of Carlo's IGA, in the Sydney suburb of Horsley Park.

In early January 2017 she made a request for leave in mid-April. Her proposed leave would coincide with the Easter holiday, which was one of the store's busiest trading times in the year. Her employer therefore had a "block-out" policy of not granting leave at Easter.

The store manager neither approved nor declined the request for leave as (a) it would fall during one of the company's block-out periods and (b) she was relocating to Queensland and would not be store manager at the time of the proposed leave.

She instead forwarded the leave request to the general manager for his approval. The store manager specifically informed the general manager that Ms Stevens was travelling overseas to Thailand on a holiday that had already been paid for.

By late January 2017, Ms Stevens was aware that the store manager had not authorised her request, that her application had been forwarded to the general manager and there was, as yet, no response from him. Several weeks later, in mid-March, as the store manager was preparing to leave the Horsley Park store, she emailed the company HR officer about the situation, who then referred the issue to a director of the business.

The director instructed that the leave request should be declined.

A meeting was then arranged for 5 April by Ms Stevens with the director. Ms Stevens told the director she was unable to make any new arrangements for her trip to Thailand and that she was not prepared to lose more than $4000 if she could not go on holiday. The business director re-stated that the April leave had been refused, adding that if Ms Stevens did not come to work during the Easter period then her employment may be terminated.

Ms Stevens worked as rostered on Saturday 8 April but then did not attend for work on 10 April and instead went on holiday to Thailand.

On 24 April, after her return, she sent a series of communications to the company stating that she had not received a termination letter; she asked for a separation certificate so that her termination payment could be processed. Ms Stevens filed an unfair dismissal claim on 28 April.

Arguments of the parties


Ms Stevens argued that her former employer had unreasonably denied her request for leave in April given that the application had been made on 12 January.

She added that the employer's requirement to change her travel plans at short notice would have caused her a significant loss of money and was therefore unreasonable. She argued there was no valid reason for the dismissal and that the termination was done without proper process.

The company argued it had a valid reason for dismissal as there were reasonable business grounds to deny the request for leave in April. The company argued that the refusal to approve the leave had been clearly communicated to Ms Stevens from January. Despite the clear communication that the request for leave had been denied, the company argued that Ms Stevens had absented herself from the workplace and disobeyed a lawful and reasonable direction of the employer. The failure to comply with such a direction constituted misconduct and was therefore a valid reason for dismissal.

The company also tried to argue that Ms Stevens had abandoned her employment, even adducing several letters that it claimed it had sent to Ms Stevens.

However, the company's alleged evidence on abandonment and its arguments were rejected by Commissioner Cambridge.

The law


A dismissal is unfair if it is harsh, unjust or unreasonable, according to s385 of the Fair Work Act. There are at least eight criteria, not all of which are relevant in every case. This particular case revolved around whether or not there was a valid reason for the dismissal.

Commissioner Cambridge considered that if an employee deliberately absents him/herself from work knowing that a leave request has been refused, then that absence can be regarded as misconduct serious enough to justify a dismissal. But, the Commissioner noted, an employer cannot unreasonably refuse to agree to a worker's request to take paid annual leave (s88(2)  of the Fair Work Act).

As Ms Stevens was fired for being absent from work after her request for leave was refused, the question to be decided was whether or not the employer's decision to refuse that request was reasonable.

Held by the Commission


Commissioner Cambridge considered that a decision based upon genuine, sound, business reasons to deny a request for leave would usually be reasonable. In this case, there was a “strong prospect” that it would be reasonable for a medium-sized retail business to block-out periods around Christmas and Easter as periods in which leave would not be granted.

But, the Commissioner continued, there were particular aspects in this case that would “operate against” the default position.

Firstly, Ms Stevens provided a “significant period” of notice to take annual leave which “would provide the employer with an enhanced opportunity to make arrangements to cover the absence”.

Secondly, there was a time lapse between the request being made and the refusal to grant leave being communicated to Ms Stevens. As it was clear that her request for leave had been referred to more senior managers, Commissioner Cambridge drew an inference that “this clearly provide[s] the applicant with an ongoing expectation that the April leave may be approved.”

As it was 10 weeks from the point of Ms Stevens making her leave request, and only two-and-a-half weeks before her holiday, “she had a reasonable expectation that [the leave] would not be refused”.

The Commissioner added that, because of the employer's inaction, it would have been difficult for Ms Stevens to try to make changes to international travel. 

Commissioner Cambridge held that it was unreasonable for the employer to have delayed a proper and clear approval or refusal of Ms Steven's leave request.

She had made the request for annual leave with "sufficient notice to enable the employer to make arrangements to cover the absence of the applicant. Further, the employer was obliged to provide and communicate unequivocal refusal in a timely manner".

It was therefore held that, in the particular circumstances of this case, the employer had unreasonably refused to agree to the employee's request for annual leave.

Accordingly, Ms Stevens did not fail to comply with a reasonable and lawful direction of the employer and her failure to attend for work at the employer's direction did not represent misconduct. Consequently, there was no valid reason for firing Ms Stevens and her dismissal was therefore harsh, unjust or unreasonable.

Ms Stevens was awarded compensation of $13,400.

Further reading

Adriana Stevens v Horsley Park Supermarket Pty Ltd T/A Carlo's IGA Horsley Park (U2017/4619)
 

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