Employer argues worker 'dishonest' about intentions to return to work
The Fair Work Commission (FWC) recently dealt with a dismissal claim from a worker who said she was fired after the period when she pursued a passion project overseas.
On the other hand, the employer rejected her claim and said she was terminated because she missed the shifts she was supposed to take after it allowed her to take the leave for the project.
Tahmina Zobair, a Sydney International Container Terminals Pty Ltd (SICTL) worker, alleged that she was unfairly dismissed. She started working with SICTL as a stevedore in October 2016 and was later appointed to a permanent full-time position.
Zobair also pursued her passion as a singer/performer, engaging in paid and unpaid performances at various venues, including international locations. The dispute involved Zobair's annual leave, which she applied for in January and February 2023 to attend performances in Uzbekistan and Turkey.
Although her employer approved this period, Zobair became ill during her trip to Tashkent and could not return for her rostered shifts in March 2023. She presented a medical certificate from a Tashkent-based doctor, confirming her unfitness for travel.
Discussion about absence from work
Upon her return to Australia, SICTL requested a meeting with Zobair to discuss the circumstances surrounding her absence and sought documentation related to her travel and medical condition. SICTL expressed concerns about the use of her personal leave entitlements.
Despite meetings between SICTL and Zobair's representative, the situation escalated, resulting in her employment termination.
The worker maintained that "at all times, she had intended to return to Australia to perform her rostered shifts on 9 and 10 March 2023." She said that "illness intervened and prevented her from doing so."
Meanwhile, the employer said that she "had no intention of returning to work the relevant shifts at the time she applied for and was granted annual leave."
It argued that if she "had such intention, she would have been able to provide documentation relating to her travel arrangements that supported her narrative" and that "her failure to do so confirmed that [she] had been dishonest at the point at which she had applied for annual leave."
"This dishonesty was misconduct" and "a sufficient reason to terminate [her] employment," according to the employer.
Was there unfair dismissal?
In its decision, the Commission looked into the employer’s arguments, noting that they mainly revolved around the worker’s failure to provide additional documentary evidence to support her claim that she was ill and unfit to work during her shifts.
However, the FWC said the absence of such documents did not convince the Commission that she “held a dishonest intention” and “engaged in misconduct.”
It also considered the worker’s length of stay with the company. “The [worker] has approximately eight years of service with the [employer, and she] has a satisfactory work history over an extended period.”
“Dismissal in circumstances where she had notified her employer in advance of her absence and provided a medical certificate to explain the absence worked harshly against [the worker],” the FWC said.
Thus, it said the worker’s dismissal was harsh, unjust and unreasonable. It then ordered the employer to pay her lost wages.
