Action on excessive personal/carer’s leave not a breach of the general protections provisions – important win for employers

In a recent decision of the Full Federal Court in CFMEU v Endeavour Coal Pty Ltd FCAFC 76 the employer’s removal of an employee from the weekend work roster because of the employee’s unreliable and unpredictable work attendance due to personal/carer’s leave did not constitute a breach of the general protections provisions of the Fair Work Act.

The facts

The employee was removed from the weekend roster (which paid higher penalties) and placed on the weekly (Monday to Friday) roster after taking about 29 days of personal/carer’s leave over an approximate 18 month period. The employer maintained that the reason for removing the employee from the weekend roster was due to the employee’s unreliable and unpredictable attendance at work, which impacted on the operations at the mine.

The law

Judge Cameron in the Federal Circuit Court accepted that the removal of the employee from the weekend roster was ‘adverse action’ under the Fair Work Act. However, his Honour ruled that the employer had not contravened the general protections provisions because the adverse action was not taken because the employee had exercised a workplace right to take personal/carer’s leave. Instead, his Honour accepted the employer’s assertion that the employee had been removed from the weekend roster because his absences meant that he had become unreliable and unpredictable, not because he had taken personal/carer’s leave.

Upheld on appeal

The Union appealed Judge Cameron’s decision to the Full Federal Court. In a 2 to 1 majority, the Full Court upheld Judge Cameron’s decision, noting that the employer’s decision to remove the employee from the weekend roster did not turn on the fact that the employee had taken personal/carer’s leave and was because the employee’s attendance at work was unreliable and unpredictable.

In his dissent, Justice Bromberg rejected the majority’s reasoning. His Honour held that the facts at trial supported the conclusion that the adverse action against the employee was taken by the employer because the employee had exercised a workplace right (to take personal/carer’s leave) and that as a consequence of him exercising his workplace right he was deemed unreliable and unpredictable.

The Union is seeking special leave from the High Court to appeal the Full Federal Court decision.

This is an important decision for employers attempting to legitimately manage excessive absenteeism.

This article originally appeared in Cooper Grace Ward’s Workplace Relations & Safety Risk Management Adviser – September 2015. Click here to download the full newsletter.