Employee argues it had 'informal procedures' regarding leaves
The Western Australian Industrial Relations Commission (WAIRC) recently dealt with the case of an employee questioning her dismissal over the paid leaves she took, adding that the employer had “informal procedures” regarding filing and approving leaves.
On the other hand, the employer argued that she was paid wages she did not deserve, and the “workplace culture” of having “informal procedures” did not exist.
Background of the case
The employee was an electorate officer of the Speaker of Western Australia’s legislative assembly, working in MLA Roger Cook’s Kwinana Electorate.
She travelled to Europe, Bali, and Vietnam with her family for around four years while getting paid. She was also absent from work for eight days while in the hospital.
She received wages for several periods when she was overseas on the holidays, in hospital, or otherwise physically absent from her electorate office. Some payments were deducted from her accrued personal leave, while other payments were made without any deduction from her leave accruals.
She was then dismissed from her employment for misconduct following an investigation into allegations that she had “failed to apply for authorised leave.”
She appealed before the WAIRC, arguing that her dismissal was harsh, oppressive or unfair and asked for reinstatement.
‘Informal procedures’
The employee focused on what she described as the “informal procedures” in the electorate office.
According to her, there were two systems for approving leave: one formal represented by the Speaker’s written procedures, and one informal, being the “custom and practice in electorate offices.”
She argued that she complied with the informal procedures, so her leave was “authorised.”
She also said the Member of Parliament (MP) that she worked with “always knew where she was, even when she was not at work,” and said that she “always complied with the MP’s instructions.”
The Public Service Appeal Board found that the employee was not entitled to be paid when not at work unless she was exercising a right to take annual leave or personal leave under the relevant award or agreement.
According to records, she had not applied for annual leave for overseas travel. Instead, she either did not apply for leave at all or applied for personal leave. It also found that when the employee applied for personal leave for her time in the hospital, she only applied for two days’ leave, not the time she spent there, totaling eight days.
It found that her overseas trips were holidays, but she did not apply for annual leave. As a result, she was paid wages while not at work, without any deduction from her annual leave accrual.
The employer argued that her conduct “amounted to the dishonest receipt of benefits,” which was misconduct that justified dismissal.
As for the employee’s argument that the MP knew where she was and approved absences, the Board rejected this position.
HRD previously reported a federal court case where a parliamentary staffer said she was dismissed because she questioned her “unreasonable” working conditions.
In another story, the Fair Work Commission decided on the unfair dismissal claim of a worker who took overseas trips to care for an ailing family member, but the employer took it as “unauthorised leaves.”
The decision
“Whether or not misconduct occurred does not depend on proof of a contravention of a policy or procedure, whether it be formal or informal. The real question is whether she acted knowingly and dishonestly by claiming benefits that she was not entitled to receive,” the decision said.
“An employee’s duty of fidelity and good faith is fundamental to employment. Dishonestly receiving unearned benefits is inimical to this duty,” it added.
When the employee argued that “her conduct was consistent with a culture of ‘rewarding’ employees by allowing them to take paid time off exceeding their legal entitlements,” the Board said such workplace culture did not exist.
It said she “was most likely the architect of that culture.”
The Board said it received evidence that “the staff in the Kwinana electorate office submitted leave application forms.” They submitted them “either as an independent process to applying for relief cover, or when relief was unnecessary,” it said.
The Board also noted the MP’s approval of an absence from work was “not the same as authorising the payment of benefits that she was not entitled to receive, nor did it authorise the lack of a deduction from the appropriate leave accrual.”
The Board found that the employee knew that by “not submitting the correct leave application forms, she would receive payment of salary as if she was working, and that she knew she improperly benefited from her conduct.”
It also said that the employer’s HR department did not fail to remind her of the purpose of personal leave and the need to submit correct and accurate application forms.
Thus, the Board ruled that the employee had engaged in deliberate misconduct and denied her appeal.
