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Game. Set. Match for ‘tennis tragic’s’ unfair dismissal claim

A self-confessed tennis tragic has failed in her unfair dismissal application, after her employment was terminated when she attended the Australian Open in January.

As the employee had exhausted all her annual leave entitlements as recently as September 2014, she applied for leave from 22 December to 2 January.  Paid leave was approved until 31 December, with unpaid leave then until 2 January, as her entitlements were again exhausted.  On 16 December, the employee then applied for further leave from 19-30 January.  This leave application was rejected due to a lack of accrued leave to cover the period.

The employee took sick leave from 5-12 January, and presented a medical certificate.  Coincidently, this period coincided with the Hopman Cup tournament.  On 13 January, the employee was directed to attend work as normal on 19-30 January and informed that a failure to attend work may result in disciplinary action, including potential termination.

The employee did not attend for work for the period and instead attended the Australian Open.

Following a disciplinary process, the employee was terminated.

During the hearing, the employee conceded that the employer may have had a valid reason for the termination, but that dismissal was harsh and disproportionate to her conduct. The Fair Work Commission rejected the employee’s argument that she had been ‘backed into a corner’ by purchasing the tickets to the event in October.  The Commission suggested that, in this case, the employee had been responsible for her own demise, stating:

“[The employee] wilfully and deliberately flouted an essential contractual condition to attend work. Having assessed the nature and duration of [the employee’s] conduct, I am unable to conclude that the dismissal was harsh in the circumstances.”

Implications for employers: As we approach the Christmas shutdown period for a lot of businesses, it is a timely reminder about ensuring employees have adequate leave accruals to cover their leave requests and the steps an employer should take where an employee is abusing their leave entitlements.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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