Ganesh Swamy decision

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The recent decision of Senior Deputy President Hamberger on 28 November 2011 in the case of Ganesh Swamy v Australian Refined Alloys Pty Limited provides comfort to employers who wish to terminate employees for excessive absenteeism. However, employers must ensure that they document all warnings to employees and that they give employees a ‘fair go all around’ in the disciplinary and ultimately the termination process.

Mr Ganesh Swamy (the applicant) lodged an application with FWA seeking an unfair dismissal remedy on 10 June 2011. He commenced employment with ARA on 1 June 2009, as an Ingot Casting Operator. Mr Swamy’s employment was terminated with immediate effect on 1 June 2011. On that day he received a letter of termination from Mr Boyle which included the following:

‘On Friday 7 January 2011, you and I met to discuss your failure to present for work after Christmas New Year break and ongoing issues with absenteeism. At that meeting I issued you with a final written warning outlining why your behaviour was unacceptable and cautioning you that any reoccurrence could jeopardise your employment with ARA.

On Monday 30 May 2011 and Tuesday 31 May 2011, you again didn’t present for your rostered shift and in our subsequent discussions, you haven’t presented any compelling justification for your absence or outlined any mitigating circumstances.

Given this situation and my previous warnings, I’m left with no option but to terminate your employment effective immediately.’

By way of background, on Sunday, 29 May 2011, the applicant called Mr Grant (his direct report) on his mobile and told him he would not be at work on Monday and Tuesday which were his rostered days. His Honour was satisfied that Mr Grant, because of concerns with the applicant’s poor attendance record, explained to the applicant that there might not be a job for him when he came back. The applicant did not indicate why he would be unable to attend work. He merely said he had to go ‘far away’.

When the applicant returned to work on 1 June 2011, Mr Boyle and Mr Grant met with him to discuss his absence. Mr Boyle asked the applicant if he had anything to say about the circumstances of his absence or reasons why his employment should not be terminated. Mr Swamy indicated that he had gone to Thailand to retrieve some money.

During the meeting, Mr Boyle explained that the applicant’s absence had caused disruption to the team and the operation because the crew was already one man down on 30 May because the team leader was on a day of annual leave.

Because of previous concerns with applicant’s attendance throughout his employment and because of his failure to explain clearly what had caused this latest absence, Mr Boyle indicated that he would be terminating the applicant’s employment with immediate effect.
His Honour had to consider whether Mr Swamy’s dismissal was harsh, unjust or unreasonable and he found the following:

1. Mr Swamy was dismissed for failing to present for his rostered shift without a sufficient excuse.
2. The recent absence came on top of a number of other incidents over a relatively short period of time where the applicant had failed to turn up for his rostered shift, without first obtaining leave, and without giving his employer sufficient degree of notice.
3. Mr Swamy had been given a very clear warning that a repeat of this kind of behaviour would place his employment in jeopardy.
4. The Employer had a valid reason for Mr Swamy’s dismissal based on his own conduct.
Having regard to the need to accord a “fair go all round” to both the employer and employee concerned, His Honour was satisfied that Mr Swamy’s dismissal was not harsh, unjust or unreasonable.

In order to improve an employer’s ability to terminate for excessive absenteeism, it is important to ensure that the employer has appropriate policies dealing with expectations for employees taking leave and a ‘how to’ in order to report sick leave. Employer’s must provide written warnings for all serious performance and conduct issues and ensure that a follow up procedure is implemented and managed.

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