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12 September 2013 Employers beware of acting against employees with family responsibilities

By Warwick Ryan, Partner and Laura Sowden, Solicitor


In Brief

Most business owners are very sympathetic to their staff members' obligations to their families and generally except that emergencies arise which may require an employee to leave the workplace. However, it can be very frustrating when this arises at a busy time or frequently over a short period. In a recent case, an employee who left work to pick up her son from school was disciplined and demoted resulting in her resignation. The court found this was breach of the employer's obligations and awarded $32,130.78 in compensation.


Background

On 8 December 2011 a friend who usually picked up the employee's son could not make it and the employee was unable to organise someone else to pick up her son. She informed her manager she needed to leave work early; her manager later refused permission. Without anyone else to pick up her son the employee left work early.

The next day the employee received a formal warning stating she had abandoned her responsibilities. Shortly after the employee was told she would be transferred to another store further away from her home in a lower position but on the same pay. The employee said it was difficult for her to work further away because she was pregnant. Nevertheless she was transferred and felt she was forced to resign.

Law

The Fair Work Act 2009 (Cth) protects employees from adverse action by their employer for a protected reason. An example of an adverse action is dismissal or demotion and an example of a protected reason would be family responsibilities or if someone has a workplace right.

Decision

The employee's obligation to ensure her son was picked up from school was a family or carer's responsibility under the Act. The employee also had a workplace right to take paid or unpaid personal/carer's leave due to an unexpected emergency – the need to collect a primary school child from school. Denying the request for personal/carer's leave and issuing the employee with a warning for leaving work to pick up her son was adverse action.

On this basis the employer contravened the Act and compensation of $32,130.78 was ordered.

What to take away?
  • Be aware of an employee's right to access personal/carer's leave.
  • When disciplining or terminating staff because they have taken excessive leave to look after family, it is critical that they are not penalised for exercising a normal employee right. Even if in a probation period.
  • It's a tricky area so we recommend that you seek advice before changing the conditions of employment for employees who have special characteristics or circumstances.


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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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