Pub­li­ca­tions

Employ­ers beware of act­ing against employ­ees with fam­i­ly responsibilities


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.