Employment and Migration Blog

Counting down the minutes - Is being late a legitimate basis to terminate employment?

Posted by Anna Ford on 5 May 2016

Are you dealing with an employee who is repeatedly late to work? Have you considered whether that would constitute a legitimate basis to terminate their employment?

In short, the answer is yes! Provided of course that you follow the correct process leading up to the decision.

This was confirmed recently in a matter before the Fair Work Commission. The actions of the employer in that decision were in fact praised by the Commission as “commendable.” Essentially, the employer had documented the incidences of lateness over a period of six months leading up to the day of the termination, including numerous verbal and written warnings.

On the day of the termination, a meeting was convened. At the meeting the employee was asked why he had arrived to work an hour late, and the employer advised the employee that his job was in jeopardy. The meeting was then adjourned to allow the employer an opportunity to consult with other management personnel, and to review the employee’s explanation for being late, his work history, the previous six written warnings he had received as well as the various verbal warnings.

The meeting was then reconvened later that day and the employee was advised that his employment was being terminated effective immediately and that he would be paid out his notice period.

The employee subsequently commenced unfair dismissal proceedings alleging that there was no problem with his work other than lateness, and it was unjust for the employer to rely on that as the basis for its decision to terminate his employment. His application was dismissed!

See Rooney v Pickles Auctions [2016] FWC 858 (9 February 2016) for more details.

What worked in the employer’s favour was its paper trail proving its attempts to address the issue, over an extended period of time – specifically, six months (although waiting six months before terminating is certainly not necessary in most circumstances).

If you are dealing with employee attendance issues, please contact our Employment Law Team so that we can work with you to develop an appropriate strategy to address the issue: