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Sales manager dismissed for poor performance and behaviour, not workplace rights

July 14, 2016

The Federal Circuit Court of Australia dismissed an adverse action claim made by a Sales Manager after she was dismissed due to failure to provide sufficient evidence for a compassionate leave request.

Jasmine Morris was employed as a Sales Manager at Allied Express Transport Pty Ltd and had previously been reported to have “inconsistencies” with previous leave requests where she had lied to management.

Ms Morris sought compassionate leave to enable her to attend her Grandfather’s memorial service six weeks after his death. Allied Express requested pictorial or video evidence of the memorial service in accordance with Section 107 of the Fair Work Act. Evidence was not provided; therefore, Ms Morris was found by the Judge to not have a workplace right at that time.

On the morning of her grandfather’s service, Ms Morris attended a meeting with senior staff and Allied Express’s CEO where she was issued a final warning letter due to poor sales performance and behaviour. The letter warned that she would face dismissal if the company did not see improvement of sales performance and behaviour.

Management directed Ms Morris to leave for her grandfather’s service on the proviso that she provided evidence of attendance, however, directed her to return to work that afternoon. Ms Morris did not provide evidence of attendance and also refused to acknowledge and sign the warning letter that was issued to her.

Ms Morris claimed the company took adverse action against her workplace rights when she requested compassionate leave. Judge Justin Smith dismissed these claims based on two factors:
1. the manager did not have a workplace right at the time as she did not provide evidence; and
2. the warning letter was in response to poor sales performance and behaviour, not the compassionate leave request.

Judge Smith identified that, while all permanent employees have the entitlement to compassionate leave under the Fair Work Act Section 104, the leave must be for the “death” of an immediate family member and evidence can be requested by the employer and must show a causal connection. The entitlement is not an automatic right to access the leave and if requested there must be evidence provided.

For further information regarding leave entitlements and performance management call the National Retail Association Hotline and speak to one of our Workplace Advisors on 1800 RETAIL (738 245).

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