Employer argues serious misconduct over 'repeated unauthorised absences'
A worker recently filed a request for an extension of his dismissal claim before the Fair Work Commission (FWC), alleging that he was fired over a dispute that involved him wanting to celebrate with his girlfriend on her birthday.
Meanwhile, the employer said he was dismissed for serious misconduct due to “repeated unauthorised absences.”
Universal Logistics is a family-run small business that operates a warehousing and logistics business for food products.
Kyle Cook worked for his father’s business for almost two years, which started on 30 August 2021. He was engaged as a casual employee, and his duties involved assisting with picking and packing customer orders to be dispatched with the couriers.
On 7 July 2023, Universal Logistics dismissed Cook for serious misconduct as he engaged in repeated instances of unauthorised absence without reasonable explanation. The dismissal was communicated by text message. The worker received and responded to the text message on the same day.
The FWC found the text exchanges appear to be part of a broader family dispute between Cook and his parents, with him living at home at the time. The conversations led to him not only losing his job but also having to move out of his home.
According to records, the worker accepted the date of his dismissal as being 7 July 2023, being the date set out in the employer's evidence regarding the text messages between the parties.
The employer argued that the worker's application was 49 days out of time. Cook said the reason for the delay in filing his application was that he “didn’t know who to contact about [his] dismissal.”
He said his dispute with the employer, which eventually led to his dismissal, came about because he wanted to spend time with his partner for her birthday.
“I was going to the city for my girlfriend’s birthday and my employer texted me [that] I was [dismissed for no] reason,” the worker submitted.
HRD previously reported about an employee who took unauthorised leave "to save his marriage" and care for his family.
In that case, the FWC emphasised that failure to file a leave request may constitute abandonment of employment, and that communicating with the employer is crucial.
Was there an exceptional circumstance?
After he was fired, he talked with his partner’s parents about what he could do, and they suggested to him at some point that he could make an unfair dismissal application.
Cook said he first learned about the 21-day period limit when he read the application form. He started to fill out the application form only very close to the date it was filed, on 15 September 2023.
Meanwhile, the employer's agent argued that Cook was distracted from making an unfair dismissal application as he was in the process of setting up a lawn-mowing business.
After investigating the parties’ claims, the FWC said that Cook “has not provided the Commission with an acceptable explanation for the delay in making his unfair dismissal application.”
“A delay of 49 days beyond the statutory time-limit is too long to be explained by any difficulties Cook may have had in actioning an unfair dismissal,” the decision said.
“I mean him and his partner’s parents no disrespect through that comment, merely that an unfair dismissal application needs to be actioned as soon as possible and in any case within 21 days after the dismissal takes effect,” it added.
Thus, it said the worker’s case did not have an exceptional circumstance to allow an extension and consequently, dismissed his application.
