By Mike Toten Freelance Writer
After a chef at a restaurant took carer’s leave to look after his wife who was admitted to hospital and then released, he was dismissed for not arranging for a replacement employee to perform his shift. However, the Fair Work Commission (FWC) held that dismissal in the circumstances was unfair and awarded him compensation of almost $4,200.
A factor that influenced the FWC’s decision was that the employee was then forced to apply for a new work visa, at considerable cost to both himself and his new employer.
Facts of case
The chef worked under a Temporary Skill Shortage Visa, sponsored by the employer. His employment record included two pay increases within two years.
He requested not to work a shift because his wife had a serious fall and went to hospital by ambulance. His manager, who had a social commitment of her own that evening, told him he had to find someone else to cover his shift. An argument resulted when the employee refused and told her it was illegal to require him to find a replacement. After bringing his wife home the same evening, he was dismissed.
The employer claimed that the employee behaved aggressively during the phone call, and often while at work, resulting in other staff not wanting to work with him. But evidence from his wife (who witnessed the dismissal conversation) and co-workers (who included his brother) refuted those claims. During the dismissal conversation, the manager did the shouting.
The FWC found that the employer had never previously raised allegations of misconduct with the employee, but had dismissed him after an argument over whether he could take carer’s leave. He was not previously advised of the reason for dismissal and did not have any opportunity to respond to it.
Following his dismissal, the employee had to obtain a new work visa within six months in order to obtain other employment. This cost him about $17,000 and his new employer about $10,000. His previous visa could have been transferred to the new employer, but it was due to expire one year later and would have required renewal then. This meant that the cost to the employee was brought forward by one year.
The Small Business Fair Dismissal Code requires an employer to provide an employee with a valid reason why his/her employment could be at risk before dismissing him/her. The employee should be warned that this is the case, and given an opportunity to respond to the reason(s) provided. The FWC found that the latter two steps did not occur, and while the employer genuinely believed that the employee had committed serious misconduct, that belief was not supported by sufficient evidence. Therefore, the employer failed to comply with the Code.
Decision
The FWC found that the employee was unfairly dismissed and awarded compensation of $4,185. The need to obtain a new visa was not included in the compensation amount, but did influence the decision that dismissal was unfair. The compensation amount made the assumption that the employee would otherwise have remained employed until his visa expired a year later.
What this means for employers
An employee is entitled to take carer’s leave in the circumstances of this case, and management (not the employee) must organise a replacement employee if one is needed.
Otherwise, this is another case that highlights the need to have a valid reason for dismissing an employee, and to follow a fair process before doing so.
