By Conor Gillam and Kerrie Jackson –
Toyota employee Sean Mamo, a car detailer employed at a Toyota dealership in Victoria, took personal leave, falsely claiming that he had to look after his sick son. He instead took the day off to take his son to see The Wiggles. Mamo initially denied he had falsely taken leave, however conceded that he had lied after his boss revealed that a co-worker had shown management a photograph of him and his son at the concert. As a result, Mamo was terminated by Toyota.
Following this, Mamo filed an application for unfair dismissal with the FWC, arguing that falsely taking leave was not serious enough to warrant termination.
What was the final ruling?
In a ruling handed down earlier this month, Fair Work Deputy President Alan Colman rejected Mamo’s application, heavily criticising the actions of the employee:
“That falsely claiming personal leave amounts to misconduct scarcely requires an explanation however I will provide one…First, claiming personal leave to which one is not entitled is dishonest, and therefore a breach of the employee’s duty of good faith. Secondly, it seeks to obtain financial advantage by deception, by claiming payment for an absence on the basis of a false assertion. Thirdly, it asserts a legitimate right to be absent from work when none in fact exists.”
Mr Colman concluded by clearly stating that falsely claiming leave in the absence of any extenuating circumstances is fair grounds for dismissal.
Given the nature of employment law in more recent times, which often appears to be weighted heavily in the favour of employees, the decision of the FWC this month is a change of pace. Mr Colman’s ruling is a timely reminder to both employees and employers that the existence of rights inherently assumes the existence of obligations; employers have an obligation to provide employees with paid leave and in return employees are obliged to not dishonestly claim paid leave.
This decision is especially timely with the Christmas season well and truly upon us. Employers are facing increased pressure to meet demand while employees may be tempted to tell a white lie in order to get some extra time off. As ever, employers must remain cautious when considering terminating an employee, as there can be serious consequences if a dismissal is found to be unfair. Remember, however, that as Mr Colman stressed, it is not at all harsh, unjust or unreasonable to dismiss an employee who falsely takes leave for no good reason.
Do you know or suspect that your employees have falsely claimed leave? Would you like advice on how to manage these matters without disrupting your business or avoiding the need to terminate an employee?