Dismissal of absent employee ruled “unjust”

by Chloe Taylor29 Oct 2014
A recent employment dispute invovling an international technology company, which terminated an employee’s contract for his absence following a family emergency, highlights the need for clear communication between HR and absent staff.

Macquarie Technology Group recently lost an unfair dismissal case following an employee’s contract being terminated after he took unapproved carer’s leave.

David Johnston, who had been an employee of the company for five years, took the leave to care for his wife and their four other young children after she underwent an emergency caesarean.

He had been granted permission to take leave but did not return to work for another two weeks after it had ended.

However, managing director of Macquarie Paul Wallace said: “The simple fact is that he failed to return to work after committing serious misconduct.” 

The company argued that Johnston could have returned to work with “obvious ease” as he worked from a home office, and claimed that his failure to do so show that he did not intend to return.

Furthermore, Macquarie claims Johnston was unentitled to paid personal or carer’s leave, as his wife’s hospitalisation did not qualify him to take emergency leave as defined by the Fair Work Act.

However, Chris Oliver, director at People and Culture Strategies, said the point of difference with this case was “affected by the ‘emergency’".

“The employer did not regard the affected individual’s dependence on the employee as entitlement to personal or emergency carer’s leave. The employer was erroneous in thinking that because the employee’s wife was being cared for by medical professionals, the type of care he needed to provide did not qualify as a need for personal leave.”

Oliver emphasised the importance of maintaining communication with employees even when they are away from the workplace.

“It’s important for employers to continue to engage with their employee when leave looks like it’s about to expire,” Oliver told HC.

“When approved leave has expired, but employees fail to return to work, employers are not entitled to take penal action. They need to consider all of their legal obligations before they act.”

Oliver reinforced that the key message from this case is that employers need to have an open and constructive communication policy with their employees, and said that there are a number of lessons to be learnt from this case:
  1. Employers need to engage with employees openly and constructively
  2. Employers should avoid making assumptions about employees’ personal circumstances and stop making decisions based on these assumptions 
  3. This has reaffirmed that employers should avoid taking a dogmatic approach to dealing with employee leave
Justice Boulton awarded the employee 20 weeks’ pay, referring to the dismissal as “harsh” and “unjust” and said that Johnston’s failure to return to work after ten days “did not provide a valid reason for dismissal.” The judge also found that Macquarie had failed to provide Johnston with a valid opportunity to respond to their allegations that he had “abandoned” his work.

Macquarie are considering appealing the decision.


  • by Amanda Rochford 29/10/2014 1:22:48 PM

    I am astounded that such poor judgement earns a salary these days. I need to ask for a raise lol.

  • by Bernie Althofer 29/10/2014 2:02:31 PM

    Perhaps these types of situations could be avoided through a phone call to check in with the employee.

  • by Sarah 30/10/2014 2:17:11 PM

    Spot on Bernie - Communication 101...it's fairly basic.

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