THE Fair Work Commission (FWC) has ordered an IT solutions group to compensate a former employee after he was found to have been unfairly dismissed for taking unapproved carer’s leave while his wife was in hospital with post-natal complications.

The salesman, who worked from his home 160km outside of Sydney, filed an unfair dismissal claim against his former employer which claimed he had abandoned his employment by not returning to work at the end of his annual leave period.

However, the employee had taken leave to care for his four young children after his wife was hospitalised for nearly two months between November 2013 and January 2014, following the premature birth of their son by emergency caesarean section.

Before his annual leave was exhausted, the employee requested to take carer’s leave until his wife’s expected release from hospital at the end of January 2014, but received no further acknowledgement of his request.

Shortly after returning to work, the employee was informed during e-mail correspondence that he was no longer employed by the company.

Before the FWC, the employer argued the worker had no grounds for an unfair dismissal claim because he had abandoned his employment when he did not return to work at the conclusion of his annual leave entitlement. Further, it was asserted the employee was not entitled to carer’s leave because the circumstances surrounding his wife’s illness did not constitute an ‘unexpected emergency’ under the Fair Work Act.

Justice Boulton, however, rejected the argument entirely.

“Although it was claimed the [employer] had advice that the [worker] was not entitled in the circumstances to access his accrued personal/carer’s leave, the [employer] never advised the applicant that the request for personal leave was denied or indeed that he was not entitled to take such leave,” Justice Boulton said.

“I consider that the failure of the [worker] to return to work on 6 January 2014 did not provide a ‘sound, defensible or well founded’ reason for his dismissal, and I would reach this conclusion irrespective of whether the applicant was entitled to be granted a period of personal/carer’s leave by the [employer].”

Additional considerations, including the employer’s failure to provide the worker with an opportunity to respond to the complaints made against him, led Justice Boulton to deem the dismissal unfair.

The company was ordered to pay the former employee 20 weeks’ compensation.

Click here to read the case in full.

Implications for Employers

For AREEA members, this case provides important clarification about the provision of the Fair Work Act 2009 which entitles employees to carer’s leave. In particular, AREEA members should be aware that employees are free to take carer’s leave under the act if they are ill, or if a member of their immediate family requires care.

The act stipulates that care for an immediate family member may be required due to illness or personal injury affecting the family member, or due to an unexpected emergency. In this instance, Justice Boulton highlighted that the prolonged hospitalisation of the worker’s wife was deemed an ‘unexpected emergency’ and that carer’s leave was justified to provide care for the worker’s children.

However, Justice Boulton also noted that while not relevant in this particular case, “the failure by an employee to return to work after a period of leave may provide a valid reason for dismissal”.

As always, disciplinary action and dismissal are delicate matters. AREEA members are encouraged to contact their local AREEA office to speak to one of our workplace relations consultants, who can provide expert advice and information about your obligations in regards to workplace relations.