Procedural fairness, unfair dismissals, and unauthorised absences: how are they linked?

We all know a colleague or friend who likes to knock off early in the afternoon for a (cough) private appointment and who may not be honest about that appointment with their manager. But where does an employer stand when attempting to address this? Does an employee who fails to obtain permission for a partial day absence or inform anyone of their whereabouts warrant a summary or immediate dismissal?

Back in 2016, a law firm found out the hard way that they were wrong after believing it was grounds for termination without notice!

In this article, we discuss the importance of following the proper termination process and what options employers have if they’re faced with this situation.

What does the Fair Work Commission (FWC) think?

In a case before the FWC a few years ago, a law firm summarily dismissed a lawyer when she returned to work three hours later than she had previously advised her manager. The reason for the delay was her attendance at Court as a victim of a domestic violence incident that had occurred the year before.

The Commission found that the employee’s failure to notify anyone in authority that she wouldn’t be returning to the office at the expected time was indeed misconduct, and it provided a valid reason for the termination of her employment. However, the lack of procedural fairness awarded to the employee, including not being able to respond to the allegations before the termination decision, and the absence of clear prior warnings that her conduct could result in the loss of her employment, meant that the FWC ultimately found the dismissal to be unfair.

However, in a later case, the FWC determined that a single day’s absence, even unauthorised, isn’t a valid reason for dismissal on its own. As such, it’s vital to consider all surrounding circumstances before deciding on any appropriate disciplinary action, and advice should be sought before pressing go on a termination.

If a law firm can get a dismissal so wrong, what does this mean for other businesses?

When is an unauthorised absence serious enough to warrant termination?

Picture this: it’s a Friday afternoon, and your employee has taken an extra-long lunch break and they’re still not back at the office. You have no idea where they’ve gone or if they’re even coming back.

How would you manage this situation and do you know what your options are? Here is an outline of some of them:

1. Reasonable efforts

You need to make multiple reasonable efforts to contact the employee. That might be via email, telephone or even text message. Is there a reason they aren’t at work? Did something happen? Is there an emergency?

2. Provide an opportunity to explain

One of the errors made by the law firm in the case above was its failure to allow the employee to respond to its concerns about her absence before deciding to terminate. A procedurally unfair process can undermine even the most valid reason for dismissal.

3. Issue warnings where appropriate

If an employee is absent without authorisation, this must be addressed through non-termination disciplinary action such as written warnings, where appropriate. These warnings should advise that further such misconduct may result in termination of employment.

Generally, a single unauthorised absence won’t be enough to warrant dismissal, however, several circumstances should be considered including any dishonesty from the employee, the reason for their absence, and any previous unauthorised absences.

To avoid unfair dismissal claims, it’s always best to speak to an expert before terminating an employee. Citation HR has workplace experts ready to assist you 24/7. Contact us here for a free, no-obligation chat to see how we can best support your workplace compliance.