Most business owners are very sympathetic to their staff
members' obligations to their families and generally accept
that emergencies arise which may require an employee to leave the
workplace. However, it can be very frustrating when this arises at
a busy time or frequently over a short period. In a recent case, an
employee who left work to pick up her son from school was
disciplined and demoted resulting in her resignation. The court
found this was breach of the employer's obligations and awarded
$32,130.78 in compensation.
On 8 December 2011 a friend who usually picked up the
employee's son could not make it and the employee was unable to
organise someone else to pick up her son. She informed her manager
she needed to leave work early; her manager later refused
permission. Without anyone else to pick up her son the employee
left work early.
The next day the employee received a formal warning stating she
had abandoned her responsibilities. Shortly after the employee was
told she would be transferred to another store further away from
her home in a lower position but on the same pay. The employee said
it was difficult for her to work further away because she was
pregnant. Nevertheless she was transferred and felt she was forced
The Fair Work Act 2009 (Cth) protects employees from
adverse action by their employer for a protected reason. An example
of an adverse action is dismissal or demotion and an example of a
protected reason would be family responsibilities or if someone has
a workplace right.
The employee's obligation to ensure her son was picked up
from school was a family or carer's responsibility
under the Act. The employee also had a workplace right to take paid
or unpaid personal/carer's leave due to an unexpected
emergency – the need to collect a primary school child
from school. Denying the request for personal/carer's leave and
issuing the employee with a warning for leaving work to pick up her
son was adverse action.
On this basis the employer contravened the Act and compensation
of $32,130.78 was ordered.
WHAT TO TAKE AWAY?
Be aware of an employee's right to access
When disciplining or terminating staff because they have taken
excessive leave to look after family, it is critical that they are
not penalised for exercising a normal employee right. Even if in a
It's a tricky area so we recommend that you seek advice
before changing the conditions of employment for employees who have
special characteristics or circumstances.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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