Employers have been warned they cannot fire an employee simply for being late, following an unfair dismissal case in which a worker was awarded compensation after being fired.
Filomena Ceccarelli was dismissed from wedding gown retailer Red Pearl Couture, with the company citing excessive lateness and inappropriate behaviour as its reasoning.
But in its decision, the Fair Work Commissioner said despite Ceccarelli’s “continued failure to ensure that she attended work on time”, this wasn’t enough to “justify immediate dismissal”.
The Commissioner also pointed out that given a notice for dismissal was given a week after the last occasion of lateness, “I do not consider instant dismissal…over a matter unrelated to timekeeping could be sustained on the basis of earlier timekeeping concerns”.
M+K Lawyers principal Andrew Douglas says this is an issue businesses need to be clear about, as excessive lateness can be categorised as a serious issue but only when it has been clarified correctly.
“Instant dismissal arises where there has been serious misconduct,” he says.
“But it’s not necessarily warranting of immediate dismissal. It needs to be an aggregation of behaviour.”
The Commission heard that Ceccarelli, who worked as a machinist on a casual basis, was late on five occasions within two months when she failed to attend work and open the store by 9am.
But the Commission also heard the manager gave Ceccarelli “warnings”, but conceded these were better described as “comments”. The Commission also heard there were no warnings about any “consequences of repetition” should she appear late again.
While there were other subjects included in the reason for dismissal, Douglas says businesses can’t just fire an employee for being late.
Instead, there needs to have been a pattern of behaviour, and the business needs to have clearly outlined warnings around these instances. Only then, Douglas says, can a termination occur. It just can’t be immediate.
“Now, if a person is so late that they don’t show up for three days, you can say that has led to an abandonment of their employment,” he says.
“But that takes at least three days, otherwise you’re talking about an aggregation of behaviour where someone has received warnings and failed to comply.”