The Fair Work Commission has found that an employee’s disregard for her lack of accrued annual leave and the lawful instructions of her employer to attend work led to a dismissal that was not harsh, unjust or unreasonable.

Implications for employers

Employee leave is one of biggest expenses for any business. Employers should take comfort from this decision, which confirms the Commission’s strict attitude to employees who disregard their lack of annual leave entitlements and seek to be absent from work nonetheless. The decision also highlights the wide discretion of employers in relation to granting leave without pay, and demonstrates that the Commission is not willing to entertain unfair dismissal applications where an applicant ‘dresses up’ and attempts to transfer the consequences of their own actions onto their employer.

Background

Ms Gluyas made an unfair dismissal claim under the Fair Work Act 2009 (FW Act) against her employer, Australian Western Railroad Pty Ltd trading as Aurizon (Aurizon).

Ms Gluyas started working for Aurizon in March 2009. On 12 December 2014, she applied for annual leave from 22 December 2014 to 2 January 2015 inclusive. Her application was granted, but only until 31 December 2014. The subsequent leave period, from 31 December 2014 to 2 January 2015, was granted as leave without pay. This was because Ms Gluyas had, by that stage, exhausted her annual leave balance.

Ms Gluyas then put in a second leave application on 16 December 2014. This time she sought annual leave for the period from 19 to 30 January 2015 inclusive. Although not disclosed in her leave application, the purpose of this annual leave was to attend the Australian Open in Melbourne. Ms Gluyas admitted during the proceedings that she was a ‘tennis tragic’. On 19 December 2014, Ms Gluyas was given a letter of warning from Aurizon concerning unacceptable conduct due to performance issues, which were unrelated to her leave arrangements. Four days later, her second annual leave application was rejected.

Ms Gluyas did not attend work from 5 to 12 January 2015, for which she provided a medical certificate. On 13 January 2015, Ms Gluyas was told that she was to attend work as normal between 19 and 30 January 2015, and that a failure to do so could lead to disciplinary action against her, including termination of her employment. This was followed by a written communication to Ms Gluyas explaining that her leave application had been refused because of her lack of accrued leave entitlements. On 14 January 2015, Ms Gluyas told her manager that she was sorry for leaving her annual leave application so late but she would be unable to make alternative arrangements for 19 to 30 January 2015.

Ms Gluyas did not attend work on 19 to 30 January 2015, during which time she attended a number of tennis matches at the Australian Open in Melbourne.

Aurizon notified Ms Gluyas of her unacceptable conduct in not attending work on 22 January 2015. A meeting was organised for 2 February 2015. Ms Gluyas attended the meeting and was asked to show cause as to why her employment should not be terminated. On 6 February 2015, Aurizon confirmed that it had given consideration to Ms Gluyas’ response and determined that her employment be terminated immediately (with five weeks’ pay in lieu of notice). Ms Gluyas argued that her dismissal was disproportionate to her conduct.

Decision

Commissioner Cloghan went through each of the matters contained in section 387 of the FW Act to determine whether Ms Gluyas had been unfairly dismissed, focusing on section 387(a) and whether there was a valid reason for her dismissal. In this regard, the Commissioner noted that, unlike many unfair dismissal applications, Ms Gluyas did not, and could not, deny the conduct leading to her dismissal: she failed to attend work from 19 to 30 January 2015 without lawful cause and contrary to a written direction from her employer. Ms Gluyas argued that her dismissal was ‘harsh’ in the circumstances, listing seven mitigating factors as follows:

  • Ms Gluyas’ incorrect understanding that annual leave was compulsory over the Christmas/New Year shutdown;
  • Ms Gluyas’ argument that had she known it was not compulsory to take annual leave over that time, she would not have done so;
  • the leave request being provided over four weeks’ in advance (when Ms Gluyas argued only one weeks’ notice was needed);
  • Aurizon’s rejection of the leave request only became known to Ms Gluyas on 13 January 2015, which was less than one week for her to make alternative plans;
  • following the rejection of her annual leave request, it was unfair for Aurizon to refuse Ms Gluyas leave without pay, because it had granted her leave without pay previously;
  • that Ms Gluyas had paid (with her husband) around $6,000 to travel to Melbourne, which her husband had booked in mid-October 2014; and
  • that Ms Gluyas was remorseful and had offered to recompense Aurizon for the period she was absent.

The Commissioner was not persuaded that any of the above reasons mitigated Ms Gluyas’ dismissal (or, indeed, that all of the mitigating factors were actually supported by evidence). The Commissioner also noted other matters, including feedback Aurizon had provided to Ms Gluyas following performance meetings in August and December 2014 and evidence that Ms Gluyas was fully aware that she had exhausted her annual leave by September 2014, following a trip to Bali, yet decided to book a trip to the Australian Open in October 2014. The Commissioner noted that these factors highlighted the nature and duration of Ms Gluyas conduct, such that the dismissal could not be said to be harsh in the circumstances.

Ms Gluyas was found to have “boxed herself into a corner with a number of self-inflicted punches”. She had “expected her employer to walk back into the middle of the ring” and grant her leave without pay to attend the Australian Open. Given the circumstances, her dismissal was not harsh, unjust or unreasonable. The application was dismissed.

Gluyas v Australian Western Railroad Pty Ltd T/A Aurizon [2015] FWC 6161