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In a recent Fair Work Commission (FWC) decision, Mr R v Pickles Auctions Pty Ltd [2016] FWC 858 (Pickles Case), the FWC commended the Employer for its process in terminating the employment of a habitual latecomer. In the Pickles Case, Mr R was habitually late for work and whilst his work performance was good, his lateness was unsatisfactory. Mr R had been issued a number of verbal and written warnings since 2011 (with three being issued in the six months prior to his termination) about his lateness.

One day Mr R arrived to work at 9:05 am despite his start time being 8.00 am. On this day, the Employer arranged for a meeting for Mr R to give him the opportunity to explain his lateness. The Employer told Mr R that his employment was in jeopardy. Mr R explained the reasons for his lateness at the meeting, namely, he slept through his alarm. The meeting was then adjourned to allow the Employer to consider the circumstances of Mr R’s employment. The Employer decided it was appropriate to terminate Mr R’s employment. Mr R was advised of this at a subsequent meeting that day and was provided a written termination letter.

Based on the evidence submitted by the parties, the FWC concluded that there was a valid reason for the Applicant’s dismissal and the dismissal was not harsh or unjust. The FWC referred in detail to the process used by the Employer with approval:

• record verbal and written warnings on the employee’s file and clearly state the date, reference to any previous warnings (if relevant), reason for the warning, responses provided by the employee and detail how the employee can improve in future;

• ensure the employee is clearly aware of the allegations against them;

• allow the employee the opportunity to respond to the particular allegations;

• if appropriate in the circumstances, advise the employee that their employment may be terminated as a result of the process;

• consider the responses provided by the employee properly by adjourning the meeting;

• if the employee’s employment is to be terminated, ensure the employee knows the reason for dismissal (verbally and in writing); and

• include in the termination letter reasons for the dismissal, reference to previous warnings and the fact that the employee had been given the opportunity to improve but unfortunately there was no improvement.

This decision reiterates that if an employer is faced with an employee who is constantly late to work that they can do something about it provided that the proper process is followed.

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