Can an employee be terminated for requesting annual leave?
In the recent case of Quigley v Belfast Sinks.com.au Pty Ltd  FWC 43, the Fair Work Commission found that an employer was “unjust, unreasonable and harsh” when terminating an employee, Mr. Stephen Quigley, who requested annual leave.
Mr. Quigley was denied leave by the director of the business, Mr. Shaw, when he requested four days of annual leave to spend time with his parents who would be visiting from overseas. Initially Mr Shaw denied his request as too few staff would be in the office, and the leave was requested at late notice. After insisting on taking leave on these particular dates, Mr. Quigley was told he could take the leave. However, the leave would be unpaid to compensate his employer for costs of flying another employee from Brisbane to cover his role. Mr Quigley was also told that on his return, he would be required to have a meeting with Mr Shaw to determine whether their relationship was salvageable.
Following the leave, Mr Shaw scheduled a meeting with Mr Quigley. During the meeting, Mr. Shaw informed Mr Quigley that he was dismissed because Mr Shaw did not believe that he was remorseful for his actions, and had only returned to work so that he could take a wage until he found another position. Mr Quigley received a letter stating that he was dismissed due to “misconduct, insubordination, general misconduct and gross misconduct.”
The Commission found that Mr Quigley was not dismissed for a valid reason. While the employer may have acted reasonably in denying Mr Quigley’s leave request, this did not mean that Mr Quigley’s reaction to the denial was a lawful reason for dismissal. The Commission found that the dispute did not arise due to Mr Quigley’s performance in his role, but his behaviour following his leave request being denied. It was found that the true reason for the decision was that Mr Shaw did not believe that Mr Quigley was grateful, or showed remorse for his behaviour.
The Commission took into account that Mr. Quigley had no warning that disciplinary action was imminent, there was no opportunity provided to him to respond, and he was not provided with a support person when he was dismissed.
Dismissing an employee can be a complex and risky process. Employers should ensure that employees are only dismissed for valid, legal reasons, and afforded procedural fairness during the termination process. Lawful reasons for dismissal of an employee include incapacity, performance, misconduct, and genuine redundancy.
If an employer is dismissing an employee, they should:
- Provide the employee with a reasonable opportunity to respond to the reasons provided for their dismissal.
- Allow the employee to have a support person present during meetings regarding their potential dismissal.
- Ensure that the decision-makers are unbiased, and understand the consequences of terminating an employee unlawfully.
If you are uncertain about the legality of terminating an employee or being dismissed by your employer, please do not hesitate to contact our team of experienced solicitors at Butlers Business Lawyers on (02) 4929 7002 or email us at firstname.lastname@example.org for personalised legal advice.