Learn how HR can handle personal circumstances of their employees
A recent Fair Work Commission (FWC) decision recently dealt with the case of an employee who got fired because she took care of her uncle.
The employer argued that her uncle was not an “immediate family member” thus, it said the employee couldn’t justify her absences. The case explores what the FWC considers justifiable circumstances if an employee needs to take excessive leaves for personal reasons.
The employee was an auditor at the employer’s workplace. In March 2020, during the onslaught of COVID-19, the employer approved the employee’s request to work from home until May 2020.
After the employee’s requests, it approved a remote working arrangement from May to December 2020, subject to certain conditions, including some requirements to attend the office.
The worker took annual leave in August and September 2020 and then applied for personal leave in September to care for her uncle.
The employer refused the request and said that the employee’s uncle was “not an immediate family member,” aside from the fact that she has seemingly exceeded her authorised absences.
After a series of negotiations about when she could take leave, the employee took unauthorised leaves when the employer failed to accommodate her requests.
In response, the employer issued a notice of intention to terminate her employment due to “non-performance of duties.” The employer also sent directions for her to return to the office.
Despite the employer’s notice, the employee retook unauthorised leaves. As a result, the employer reprimanded her and reduced her classification due to her failure to comply with its direction to return to the office. Consequently, the employer terminated her employment.
Was the employee a “carer” under the Fair Work Act?
In this case, the employer argued that the uncle was “not a member of [the employee’s] household” or “not part of her immediate family,” thus, it said that she should not be considered a “carer.”
But according to the FWC’s considerations, it noted that the employee had caring responsibilities for her uncle. It found that she met the definition of “carer” in the Fair Work Act.
It received evidence that she was residing during the relevant period with her uncle. In fact, the employee informed the employer of their situation. Records showed that the uncle had been living with her since 2016, and she had provided medical certificates confirming she was responsible for her uncle’s care when he was not in the hospital.
The case is an important lesson for HR leaders to make a record of asking about the personal circumstances of their employees when they go beyond their allowed absences and keeping track of their justifications with sufficient proof. It is also a reminder that there is no “fixed” family or household setup because relationships continuously evolve. Thus, HR should extend more patience to understand and accommodate different situations.
The FWC’s decision
The FWC found no basis for the employer to decline the employee’s leave requests. It said that the employee’s uncle was a member of her household, and she had caring responsibilities for him.
Among other issues, the FWC said that the employee was unfairly dismissed. Thus, it ordered that the employer maintain the continuity of her employment and period of continuous service. It also asked about the basis for her remuneration that she had earned since dismissal.
The decision was handed down on 7 April.
