Are you dealing with an employee who is repeatedly late to work?
Have you considered whether that would constitute a legitimate
basis to terminate their employment?
In short, the answer is yes! Provided of course that you follow
the correct process leading up to the decision.
This was confirmed recently in a matter before the Fair Work
Commission. The actions of the employer in that decision were in
fact praised by the Commission as "commendable."
Essentially, the employer had documented the incidences of lateness
over a period of six months leading up to the day of the
termination, including numerous verbal and written warnings.
On the day of the termination, a meeting was convened. At the
meeting the employee was asked why he had arrived to work an hour
late, and the employer advised the employee that his job was in
jeopardy. The meeting was then adjourned to allow the employer an
opportunity to consult with other management personnel, and to
review the employee's explanation for being late, his work
history, the previous six written warnings he had received as well
as the various verbal warnings.
The meeting was then reconvened later that day and the employee
was advised that his employment was being terminated effective
immediately and that he would be paid out his notice period.
The employee subsequently commenced unfair dismissal proceedings
alleging that there was no problem with his work other than
lateness, and it was unjust for the employer to rely on that as the
basis for its decision to terminate his employment. His application
See Rooney v Pickles Auctions  FWC 858 (9 February
2016) for more details.
What worked in the employer's favour was its paper trail
proving its attempts to address the issue, over an extended period
of time – specifically, six months (although waiting six
months before terminating is certainly not necessary in most
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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