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  • Jackson Clarence

Unfair Dismissal Claim Backfires on Employee regarding Lateness to Work

One of the ancient and timeless struggles seen between employers and employees in business remains the infamous issue of timeliness and punctuality to work. From the 8am starts all the way to the dreaded ‘graveyard shifts’, many employers appreciate punctuality and expect their workers to arrive on time each day. If an employee is repeatedly late for work, it is generally expected that the employee should have a good excuse as to why they couldn’t (or didn’t) arrive when requested.

A worker at a vehicle auction house in Sydney learnt this the hard way after he was dismissed for his ‘tardiness’ and continued lateness. He applied to the Fair Work Commission (FWC) for an unfair dismissal remedy. The question arose: Can you fire an employee just for being late for work, no matter how frustrating that might be to the manager? The Fair Work Commission can provide an unfair dismissal remedy, if a worker shows:

  • You were dismissed, and

  • Your dismissal was harsh, unjust or unreasonable, and

  • Your dismissal was not a case of genuine redundancy, and

  • If you were employed by a small business, your dismissal was not consistent with the Small Business Fair Dismissal Code.


The employee had worked for Pickles Auctions for almost seven years as a detailer before he was dismissed. During that time his level of performance was described as ‘inconsistent’. This description was largely due to his habitual lateness in attendance for work. This persistent lateness was coupled with several other unsatisfactory conduct incidents, to the extent that the worker had been issued written warning dated; 8 February 2011, 7 February 2013, 11 September 2013, 18 February 2015, 27 March 2015 and 4 May 2015 both for his continued lateness and other related issues.

The employer provided evidence to the Fair Work Commission that in addition to the written warnings, the worker was frequently verbally warned about his failure to attend for work at the scheduled commencement time of 8am. Adding insult to injury, this lateness was accompanied by the employee’s failure to provide prior telephone advice to his supervisor – for example letting him know that he would be late.

On 17 July 2015, the worker slept through his alarm and at 8:52am rang his employer to advise him that he would be late. The applicant arrived at work about 9:05am.

Employer’s Reaction

On the same day at around 2:30pm, the employer requested a meeting with the worker seeking a proper (if any) explanation for his late arrival

to work and inquired into his failure to provide prior notification of his lateness. The Commission was informed that the worker could not provide any explanation for his lateness or for his failure to advise the employer of his delay before the scheduled start time of 8am. The only explanation the employee was purported to give was that he thought “the time was earlier than it was”.

The worker was told that his employment was at risk because of his continued poor punctuality and attendance. He was then given an opportunity to offer further comment. The meeting was adjourned in order to allow the employer to consider the circumstances of the applicant’s employment, including hid past multiple breaches and lateness. The employer later met with personnel management and reviewed all previous warnings and history, deciding to terminate the worker’s employment.

At about 3:30pm, the applicant was advised verbally and in writing of his dismissal which included references to the previous warnings and included mention that he had been given opportunities to improve his punctuality to no avail. The worker was paid all accrued entitlements together with an amount representing 4 weeks’ notice. The worker responded angrily, swearing and telling them “I’ll see you in court”.

Fair Work Commission

In his defence, the worker told the Commission that on the day of his dismissal he was unwell and should have gone to the doctors to get a certificate, but decided to go to work to help out where he could. The former employee said that if he was reinstated, he would go back to work and “do the best that he could and be a happy worker”. He had not sought or obtained alternative employment following his dismissal.

Commissioner Ian Cambridge said that the evidence established that the worker was dismissed for reasons relating to poor/late attendance and misconduct. In particular, his repeated failure to attend for work at the scheduled starting time without giving prior warning to his employers. The Commissioner noted that the approach taken by the employer here was “commendable” and that all proper procedures and opportunities were given. He concluded that the employee’s dismissal was not harsh, unjust or unreasonable as a result.

An important lesson to take away here. Before dismissing the worker, the employers here took all reasonable steps necessary to avoid a successful unfair dismissal claim against them. Prior warnings had been given both verbally and in writing, they allowed reasonable time for improvement, no excuse could be given by the employee, adequate payments and wages were paid and the termination took place after consideration and consultation with the employee.

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