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View Full Version : Is not turning up for work enough grounds to dismiss as Serious misconduct?



tubefeed
09-12-2012, 07:47 PM
Scenario: worker failed to turn up on Sat morning. Supervisor called, worker explained that he slept in and will be there soon. Worker still failed to turn up. Worker has been with us for only 1 week!
Question: can we dismiss as serious misconduct? As such, can we withhold payment of 1 week notice period?
More details: we have less than 15 emps, so unfair dismissal does not apply.

Tiger
10-12-2012, 12:18 PM
What is new worker's probationary period?
you need to have a disciplinary session with this new employee and point out that being employed means he/she shows up to work as scheduled!
Sounds like he/she is on shift work; was inclusion of shift work made clear as part of job offer ie they knew and understood the requirement and shift times?
I would not classify this a serious misconduct. Had you not made contact with him when you called, you might have been able to use the option of abandonment of employment but that is only an option when employees do the disappearance trick and can't be contacted - you still have to make every effort to locate the individual (including email and letter writing) before you can actually dismiss on this ground.
After one week of employment, sounds like you have a dud; and after a disciplimary session in which you make clear, can lead to dismissal (if he does this another couple of times), I suspect he will probably just walk anyhow. Make sure you discipline ASAP if he does in fact return to work, put it all in writing and have the employee sign.

Tiger

Qld IR Consultant
10-12-2012, 01:40 PM
1 week??...sack them.....

tubefeed
10-12-2012, 05:04 PM
Well....i was all for sacking....he came in with a sob story about his girlfriend walking out....sigh....instead we have issued a formal written warning, with instant dismissal next time. Sooooo hard to get good help....

Qld IR Consultant
11-12-2012, 08:19 AM
Sounds like the young man needs to harden up :)..... I might suggest formalising it within the scope of a performance improvement plan. Also make sure he is aware he is on probation......

Renee
12-12-2012, 11:37 AM
I second Old IR Consultant's point - ensure he is well aware this is a probationary period (is this formalised in his contract?) and a performance improvement plan sounds like a definate plan!

hrprofessional
17-01-2013, 02:08 PM
If he is within his qualifying period and therefore cannot access unfair dismissal it's really up to you whether you decide to performance manage or dismiss the employee.

However a few things to note:

- It's not serious misconduct. Serious misconduct is for the most serious of offenses like willful or deliberate fraud, serious WHS breaches or bringing the organization into disrepute. See regulation 10.7 of the Fair Work Regulation (2009) for the definition of Serious Misconduct (http://www.fwc.gov.au/documents/legislation/fw_regs/FW_Regs.htm#P60_1864). Simply not showing up one day is unlikely to constitute serious misconduct so it would be best if you did decide to dismiss him to either pay the weeks notice to him in lieu or ask him to work it out (up to you).

- The only avenues he would have available would be a discrimination claim. For example if he was to argue that he was unfit for work that day because he was psychologically unable to perform his job because he was left by a long term partner and it triggered depression. He would probably need to provide medical evidence of this. If he did make this argument then i would be wary (and that would be a personal leave day anyway).

- You have followed HR best practice by simply giving him a warning. Even though he is within the qualifying period, many forget that obviously warnings can be relied on if the employee stays with the company long enough to pass their qualifying period.

Regards,
HR Professional
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