industrial relations, Legal

Worker wins compo for being fired after failing to attend work, explaining to boss he’d “been feeling shit bro”

Emma Koehn /

A window and doors installation business that was found to have unfairly dismissed a worker for failing to show up on a job site says it doesn’t know what else it could have done after spending months trying to resolve a tenuous relationship with the employee.

On Friday the Fair Work Commission decided Architectural Project Specialists (APS) was wrong to summarily dismiss one of its installers on May 19 of this year. The employer contacted the worker via voicemail and text message on this date to inform him the business needed a company car and tools returned because “we’re moving on”.

The Commission heard the decision to dismiss the worker was made after he failed to attend work on May 17 and didn’t let the business know about his absence.

The employee told the Commission he had been struck down with food poisoning between May 17 and 19 and this was the reason for his non-attendance, and the company’s managing director said he received a text message from the worker on the the morning of May 18 that read: “Been feeling shit bro not going to make it. Sorry.”

The company says it had previously warned the worker about poor attendance “a hundred times”, and on May 19, after checking in with the employee to ask whether he was going to return to work but not receiving a response, the company sent notification that he was no longer employed by the business.

Fair Work Commission deputy president Susan Booth decided the worker was covered by the Small Business Fair Dismissal Code, as the business had nine employees at the time of dismissal.

She considered whether the actions of the worker made a summary dismissal appropriate, but found under the circumstances, failing to attend work and not being contactable for 24 hours was not serious enough behaviour for an automatic firing.

Booth observed that while the business said the worker’s non-attendance had been a pattern of behaviour over some time, the company was not able to provide evidence of warnings to the employee or instances where his wages were affected by non-attendance.

“It would have been a simple matter to produce time and wages records to substantiate this contention, however, despite APS being given an opportunity to provide more information to the Commission after the hearing, nothing was provided,” she said.

As a result, the Commission found there was “no valid reason” for the dismissal, which she said was “harsh, unjust and unreasonable and therefore unfair”.

Booth decided reinstatement in the role was inappropriate and will now consider the amount of compensation APS will have to pay the worker.

Speaking to SmartCompany this morning, a spokesperson for APS says the business had done everything it could to support the employee, and is disappointed that despite sending “so many warnings”, the decision to dismiss the worker will lead to the company paying compensation.

“From around the start of this year, we thought, ‘this is not going to work out’,” the spokesperson says.

The business says it will take more care in hiring people in future, with the spokesperson claiming the business spent significant time trying to help the worker in his personal life.

“I don’t know what else we could do. I think you just can’t get personal with these things,” says the spokesperson.

SmartCompany was unable to contact the worker for comment this morning.

Keeping records is key

Rachel Drew, a partner at law firm Holding Redlich, says small businesses often face challenges when giving warnings to staff, because it’s typical for the bulk of their communications to be done in person, rather than through formal human resources channels.

It is more common for warnings and discussions to be had very informally,” she says. 

“But when it comes to the Commission, and providing evidence around communications to do with performance, the employer needs to be able to show concrete evidence.”

If an employer in a small business finds they need to communicate a warning to a staff member about an issue like attendance, emails are your best bet, Drew says.

“Emails include proof that they have been sent as they are marked with the date and time,” she advises.

“Text messages are also okay, but worst case scenario, a business should still be keeping a calendar record that says, ‘we had a conversation [with a worker] about this issue, on this date’.”

Drew reminds businesses that no matter the size of the company, summary dismissals are reserved for the most serious conduct breaches, like fraud, theft or assault in the workplace.

When it comes to absences from work, Drew says previous decisions from the Fair Work Commission suggest an employer must inform a worker that their non-attendance could result in termination before they actually take this step.

“It is a very difficult scenario, but you do have to make sure that absent employee is aware and that they appreciate you are considering a termination,” she says.

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Emma Koehn

Emma Koehn is SmartCompany's senior journalist.

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  • Michael Ratner

    Never ceases to amaze me. The employer apparently is presumed guilty even though evidence shows there was a genuine effort to accommodate this worker.

    Further more and I quote …. Drew says previous decisions from the Fair Work Commission suggest an employer must inform a worker that their non-attendance could result in termination

    .Really …. problem solved unless of course it’s termed as bullying……
    When one is employed the paper work at all times must indicate that non attendance can result in termination.

    • “The evidence shows” – Problem is, there was evidence to show in fact.

      • Oops, I meant “no evidence to show”. There were just assertions after the event.

        • Michael Ratner

          Which part of all of this is the truth.

          I quote from the article – it doesn’t know what else it could have done after spending months trying to resolve a tenuous relationship with the employee.

          the worker’s non-attendance had been a pattern of behaviour over some time,

          The company says it had previously warned the worker about poor attendance “a hundred times”,

          and finally APS being given an opportunity to provide more information to the Commission after the hearing, nothing was provided,” she said.
          As a result, the Commission found there was “no valid reason” for the dismissal, which she said was “harsh, unjust and unreasonable and therefore unfair”.
          We must therefore assume the employer was lying or just plain dumb not to follow through.
          It’s easier to get a divorce than terminate an employee.

  • helma Parkin

    Best way is to record all conversations but I guess not to many want jobs these days and to send a text message the day after becoming sick is sick as there was work to be done and it doesn’t do it itself

  • Justin Tyme

    Once again, the FWC is demonstrably completely out of touch with the reality of a small business operation. This worker had probably 25% plus of the company assets tied up in a vehicle and tools; and the company is expected to just accept this impairment? Let me see, you should record every conversation you have with employees, even though you already work 12 to 14 hrs per day, with 9workers, probably 5 in the field you are expected to spend another 1 hr plus recording this. You pay, you invest, you employ and the individual threatens the livelihood of everyone in the company because he can’t be readily dismissed.
    Nonsense.
    Yet another reason not to employ. Such regulatory framework forces companies to use consultants at vast expense, and the company is still liable for any error. Again I predict this is a contributor to the downward spiral of affordable Australian employment.

    • This former employee could be a valuable resource item (live) in human resource training sessions at this company or any company. Get him in to talk. Everybody might learn usefully.
      His actions were unacceptable on the face of it but the circumstances would be worth examining. Myself I just had Type A flu (in spite of vaccination in March). I can testify that the flu slid in over just two hours of “having a cough”, then for 48 hours I could not eat, drink or even take my clothes off. Thinking about an abstract obligation was not happening at that time. I was not checking messages either. I was in another world for 2 and a half days.
      If his message arrived in a morning, then possibly he had sent it the previous evening, at the end of the first day of sickness, which would be pretty reasonable. Depending on his literacy levels, the message which in print after the event seems abrupt and perfunctory may at the time have seemed informative and coherent to the worker.

  • Bobb

    As the operations manager ( business parlance for the bosses dogs body and gopher) for a labour hire company in the construction sector, I can attest to the fact that the 80/20 rule works for certain useless individuals in the workforce.

    Keeping the client happy is an ongoing struggle when you have to work with assigning labourers who would rather smoke joints, drink alcohol in the morning and deal ice than do an honest days work.

    I live by SMS as that way I have concrete evidence when I have to show these shitlords the door and they have no recourse for pleading innocent. As the saying goes, we all rise to our own level of incompetence. A year from now, the company will have improved and thrived and the worker wil most likely find himself being tossed around in the flotsam of life….bumping from job to job wondering why “the system” has it in for him…. Look in the mirror would be my first piece of advice.

    There is a reason some individuals wear high viz……..We all get what we deserve….