Employee compensated for unfair dismissal after taking carer’s leave for wife’s emergency C-section

A salesman who brought an unfair dismissal case against his employer after he took carer’s leave following his wife’s emergency C-section has been awarded compensation by the Fair Work Commission.

David Johnston was awarded 20 weeks’ pay from employer Macquarie Technology Group International (which is not related to Macquarie Group Australia) after he was found to have been unfairly dismissed for taking a leave of absence in January this year.

Johnston had been employed with the company for five-and-a-half years when his wife gave birth to a son by an emergency caesarean operation, 10 weeks premature.

The family had four other young children at home, including three pre-schoolers, and Johnston had applied for and received an approval for leave to stay at home to care for them until January 3, 2014.

When Johnston didn’t return to work until January 16, Macquarie Technology argued Johnston had abandoned his employment by not returning to work after his approved leave entitlements.

Questioning the grounds of unfair dismissal, Macquarie Technology managing director Paul Wallace told SmartCompany Johnston was never dismissed.

“The Applicant did not lead any evidence whatsoever that demonstrated that he had been dismissed. The simple fact is that he failed to return to work after committing serious misconduct,” says Wallace.

He claims Johnston had “obvious ease” to return to work given that he worked from a home office and says Johnston’s actions show he never intended to return to work. He also claims Johnston transferred over 80% of the company’s customers to a competitor.

“The judgement deliberately fails to point to a date where the claimed dismissal occurs,” says Wallace, who believes some of the statements in the judgement are misleading and may potentially demonstrate malfeasance.

“It’s also unfair for the Judgment to completely leave out Johnston’s admission to misleading the Commission in relation to income streams received, whilst under Oath.”

Macquarie Technology argued Johnston was not entitled to paid personal/carer’s leave as the circumstances relating to his wife’s hospitalisation did not amount to an “unexpected emergency” within the terms of the Fair Work Act.

But Justice Boulton found the dismissal was “harsh, unjust or unreasonable” because Johnston’s failure to return to work 10 days after his accrued annual leave had run out “did not provide a valid reason for dismissal.”

Boulton said Johnston was given no prior notice by Macquarie it would treat him as having “abandoned” his employment if he did not return to work soon after January 3.

The judge also found it was unreasonable because Johnston was entitled to take some of his accrued personal/carer’s leave in the circumstances and the company had failed to provide a proper opportunity for Johnston to answer or to respond to the allegations.

Wallace says the company will be appealing the decision and will be filing a complaint with the Attorney General’s office as well as with the President of the Fair Work Commission.

“This is the most controversial judgement ever handed down in an unfair dismissal case,” says Wallace.

He says the judgement sets a dangerous precedent, demonstrating that serious misconduct and an abuse of process by an employee is “utterly irrelevant” & that paid paternity leave via back door provisions have been authorised by this Judgment”.

TressCox Lawyers partner Rachel Drew told SmartCompany the judgment shows the commission has taken the view the employer has not had proper regard to their obligations under the Fair Work Act and hasn’t considered issues such as personal carer’s leave.

“At the same time, there does appear to be a lack of communication on the employee’s part,” says Drew.

“Through better communication on behalf of both parties, this perhaps could have been avoided.”

“Unexpected events occur to employees frequently, so employers need to make sure they respond to the events carefully and in a very conscious way.”