Gluyas v Aurizon [2015] FWC 6161: Ruling in Favour of Employer over Dismissal
Friday 9 October 2015 @ 10.09 a.m. | Industrial Law | Legal Research
In the case of Gluyas v Australian Western Railroad Pty Ltd T/A Aurizon [2015] FWC 6161 (11 Septemer 2015), the Fair Work Commission (FWC) has ruled in favour of Australia’s largest rail freight operator by approving the dismissal of an employee for taking unauthorised leave to attend the Australian Open tennis tournament (the Australian Open).
The application was made under s 394 of the Fair Work Act 2009 (Cth).
Background
Lynn Gluyas (the Applicant), a self-described “tennis tragic”, had been employed by Aurizon since 31 March 2009 when she applied for annual leave in December 2014 until January 2015. Her boss (Ms S Ball) approved the request on the condition she take leave without pay for the final day of her nominated absence, because by that time she would have used up all her annual leave.
A few days after applying for the initial leave period, Gluyas applied for annual leave from 19 to 30 January 2015. However, her application was rejected after Gluyas was given a letter of warning outlining that taking annual leave without having any time accrued was unacceptable.
Gluyas did not attend work on 5 January 2015 but provided her employer with a medical certificate valid until 12 January 2015. The day after the medical certificate expired, Gluyas’s boss informed her she was required to work as normal for the period she had requested off but been denied.
The employee was informed that a failure to attend work between 19 and 30 January 2015 may result in disciplinary action, including the termination of her employment. Despite this, Gluyas told her boss she was unable to make alternative arrangements and apologised for leaving the annual leave request so late.
Gluyas failed to show up for work between 19 and 30 January 2015 because she was in Melbourne attending between seven and 10 tennis matches as part of the Australian Open.
Action by the Employer
After a series of meetings, Gluyas’s employment was terminated and she was given five weeks’ pay in lieu of notice.
Gluyas applied to the FWC claiming she had been unfairly dismissed but in his ruling, Fair Work Commissioner Cloghan ruled the facts in this case were largely not in dispute and the dismissal was proportionate to the former employee’s conduct [at para 25].
As a result, Gluyas’s unfair dismissal application was dismissed.
Comment by the Commissioner
In his decision, Commissioner Gloghan said of the Employer, at [para 97]:
"Aurizon is a large employer and adopted, prior to and subsequent to the misconduct, actions which can only be described as fair and reasonable. For this reason, the Applicant’s representative sensibly came to the view that Mrs Gluyas’ only avenue was to claim the harshness or disproportionate response by the Employer to her conduct."
Taking unauthorised leave
Lawyer, Rachel Drew, said this case is not the first of its kind where an employee has taken unauthorised leave to attend a sporting event:
“In this case the employer appears to have very clear policies about leave and have had very clear instructions to the employee about why to apply for leave … In this case, the employee simply didn’t meet the standards that were expected. In terms of the dismissal, the employer has approached it as being a refusal to follow a lawful direction in relation to the leave and the commission has agreed that that is a valid reason for dismissal.”
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Sources:
Gluyas v Australian Western Railroad Pty Ltd T/A Aurizon [2015] FWC 6161 (11 September 2015)
Former Aurizon employee and “tennis tragic” loses unfair dismissal bid after taking
unauthorised leave to attend the Australian Open – Article from smartcompany.com.au
