Toot Toot, Chugga Chugga, Big Fat Lie

Being a working parent, whether it is full-time, part-time or as a casual, can be hard. There is the juggling act between an employee’s duties to their employer and wanting to give their children every opportunity and experience before they are too old to not like them anymore. In the workplace there are still some negative perceptions around working parents, whether they are actual or imagined. For example, working parents can feel guilty for requesting a day of annual leave to take their child to a children’s concert, such as the Wiggles or Justine Clarke. Some parents take the risk of having a ‘sickie’ to alleviate this guilt. However, working parents who do this risk their jobs. The case of Sean Mamo v Robjan Pty Ltd t/a Yarrawonga Toyota [2019] FWC 7900 is an example of a working father who took this risk and lost.

Sean Mamo v Robjan Pty Ltd t/a Yarrawonga Toyota [2019] FWC 7900

Mr Mamo, a father of a young son, had his claim for unfair dismissal rejected by the Fair Work Commission (the FWC). Mr Mamo claimed a day of personal/carer’s leave informing his employer that his son was unwell. However, Mr Mamo’s son was in fact not sick. The reason for the leave was so Mr Mamo could take his son to a Wiggles concert. Mr Mamo believed any request for annual leave would be rejected. A photograph of Mr Mamo and his son at the Wiggles concert was posted to social media and shown to Mr Mamo’s employer. When asked about his leave Mr Mamo first denied that he had taken his son to a Wiggles concert. However, when shown the photo Mr Mamo admitted to falsely claiming personal/carer’s leave.

Deputy President Colman held that Mr Mamo had not been unfairly dismissed. It was not an unfair dismissal because his employer had a valid reason for dismissal. Falsely claiming personal/carer’s leave amounts to misconduct because it is a breach of an employee’s duty of good faith, it obtains a financial advantage by deception and claims a legitimate right to be absent from work when there is none based on the facts. Mr Mamo deliberately misleading his employer was of sufficient gravity to warrant his dismissal.

What are the legitimate reasons for taking paid personal/carer’s leave and what is an employee’s duty of good faith?

Personal/Carer’s Leave

Paid personal/carer’s leave is one of the 10 National Employment Standards in the Fair Work Act 2009 (Cth) (the FW Act). An employee is entitled to 10 days of paid personal/carer’s leave per year. Any unused paid personal/carer’s leave is accrued from year to year. Section 97 of the FW Act outlines that an employee is only able to take paid personal/carer’s leave if:

  • they themselves are sick or injured; or
  • to provide support or care for a member of the employee’s immediate family or household because that member is sick, injured or if there is an emergency.

Under section 107 of the FW Act an employer can request from the employee proof of the reason for the leave. This is usually in the form of a medical certificate but can also be provided in a statutory declaration.

In Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138 the Federal Court outlined the principles for paid personal/carer’s leave. Particular to this situation the Federal Court stated that a day taken for paid personal/carer’s leave is an authorised absence from work if, and this is the key, only if an employee is sick or injured or a member of their family or household is sick, injured or involved in an emergency. An employee is unable to take paid personal/carer’s leave for any other reason, such as attending a Wiggles concert.

Duty of Good Faith

Though not expressly written in an employment contract there are certain duties employers and employees owe to each other that are implied by law into the employment contract. One of these duties is the duty of good faith. For employees the duty of good faith requires an employee to act faithfully in the performance of their duties and to act for the benefit of their employer. Employees are also not to act in a way that would or would likely damage the trust and confidence between the employer and employee. Dishonestly taking paid personal/carer’s leave is not acting faithfully and would damage the trust and confidence that an employer has with their employee if the deception is discovered.

Take Home

It is important for employees to understand what paid personal/carer’s leave can and cannot be used for. If employee’s dishonestly use this leave, they risk being terminated for misconduct. Though it might be tempting for an employee to have a ‘sickie’ in order to take their children to a Wiggles concert, or for some other personal reason, they risk their employment. If employers are concerned about any paid personal/carer’s leave taken by employees, they are able to ask for evidence of the reason for taking the leave.

If you are interested in reading more about the interpretation of a day for paid personal/carer’s leave please see my previous blog.

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Jessica Hatton

Jessica graduated from the University of New England in 2018 with a Bachelor of Laws and Bachelor of Business majoring in Human Resource Management. Jessica was admitted as a Solicitor in July 2018, and following her admission, Jessica practiced in property law in Tamworth, NSW. With an interest in employment law and human resources, Jessica moved to Sydney in 2019 to join PCC Employment Lawyers. Jessica has gained experience in a wide range of workplace law areas, including employment contracts, Unfair Dismissal matters, General Protections Applications, Workplace Investigations, Enterprise Bargaining, corporate governance, and discrimination.

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