The annual leave saga

Deborah Peppard - HR Director

A few of our clients are small businesses with around twelve staff - for one of them, what should have been a simple situation regarding annual leave became a frustrating series of poor behaviour that culminated in a tough decision being made once they received the advice from HR Staff n' Stuff as their in house HR consultants. 

​The story commences with the appointment of a new senior person in their business. The new employee informed the business owner that they had a pre-planned holiday booked for two weeks within the first few months of starting.  Although the new employee wasn’t entitled to leave, the business owner agreed to honour this time off - it was a reasonable request and can quiet often crop up when new team members commence.  But some will always try to push the envelope....

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Another Annual Leave Request
Upon returning from this leave, the employee put in a leave request form for six weeks of leave during the June – July period of 2016 as they were planning a trip to Europe. The business owner declined the request due to two factors:

1. The end of the financial year was the busiest time of year for the business and a six-week absence from this employee would significantly impact his capacity to operate his business and service his clients. 
2. The employee already had two weeks of leave and wasn’t entitled to another six. 

The business owner advised the employee that she was able to take four weeks of annual leave however some of the leave would need to be taken without pay as there wasn’t enough leave accrued.  She was in arrears based on taking leave before accruing enough and to request another six weeks was actually quite cheeky.  The employee accepted the reduced leave approval agreeing it was more than fair.   But, this wasn't the end of the story...
 
The annual leave request, the bad behaviour and the big lie
Five days prior to the employee taking leave she approached the business owner and said she had to leave the office urgently as her solicitor had called with an emergency.  When questioned as to the emergency she replied with “I haven’t signed my will.”   After establishing it wasn’t actually a life or death matter, the business owner declined her request to leave immediately as she was the only manager in the office at that time.   He advised that she could go as soon as one of the other managers came in – in approximately an hour.   The employee picked up her bag and left anyway.

The day before the employee’s leave she went into the business owner’s office at 3pm and said she was leaving. The business owner said “no, you need to work until 5pm. Your leave doesn’t start until tomorrow.” She picked up her bag, said good bye and, once again, left anyway.

Failing to follow a direction from the employer is clearly unacceptable.  The business owner and I discussed what we would do.  We decided that we would have a formal discussion on her return and would at that time consider her responses to her concerns.  We both agreed that we would likely take serious disciplinary action regarding these two incidents.

On the Saturday prior to her returning to work on Monday, the business owner received an email from the employee stating that she was unwell and had seen a doctor in Italy and he had said she was not fit to travel.  She provided a medical certificate (written in Italian) and said she was due to see the doctor again in three days’ time.  Naturally the business owner was sceptical of the legitimacy of the medical certificate, as was I. 
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Given the employees original request for a longer period, it all seemed very convenient that she was now sick and unable to return home.  In these instances, I get cranky!  Businesses don’t have to put up with this blatant disrespect!  But all we had at this point were suspicious minds and it could have been legitimate.  However, we did have access rights to the employee’s work computer as it was company owned.   Disappointingly, we found an itinerary for her holiday showing internal fights in Italy for the week after she was supposed to be back at work AND a return flights from Rome back to Melbourne a week after she was due back at work.  It was clear that the employee had been deceptive and had never had an intention of reducing the six week jaunt to four weeks when the original request was denied.

To terminate or not
So, armed with the itinerary as evidence,  I recommended to the business owner that we could terminate the employee for gross misconduct on her return.   We would be taking a risk with a possible unfair dismissal case but the business owner was willing to move forward because he felt strongly that he couldn’t tolerate untrustworthy deceptive behaviour in his business – coming from a senior employee it was highly damaging and fed a perception that there were no values within the business.  Further, it undermined team morale and respect that employees had for the business owner.  And I absolutely agreed. 

He decided that he wasn’t going to wait until the employee's return and instead sent a termination letter to her via email while she was still on leave.   Although we usually recommend proceeding with caution, in this instance we both felt strongly about terminating immediately and sending a strong message. 

What to consider

• There are rules and processes to deal with employee behaviour, but you are entitled to make hard decisions that ultimately protect your business - especially when you have evidence of unacceptable behaviour and have weighed up the risks before taking any action.  (In this case, we felt the employee would not raise an unfair dismissal case, but if she did we had compelling evidence to allow us to reach a settlement that we would be comfortable with.  There were also considerations based on the number of employees and length of time employed in the business that supported the final decision.)
• The actions you take when dealing with employee issues set precedents in your business and send a clear message to other employees on what will and will not be tolerated.  Make sure you manage all employees consistently.  Senior management should adhere to the policies and cultural values of the business in the same way junior team members are expected to behave.
• Document everything!  The more notes you have, the better case you can build if you have to explain your actions in a hearing.  
• Sometimes as a business leader you have to make tough calls, but this is easier to do if you have the right advice and the solid support that will ensure you are fully informed as to the legal implications of decision.
  
  

Please note that this case was an unusual one but highlights the need to always get professional advice, based on your own circumstances, to allow you to make the best decision for your business. If you have employee issues, don’t hesitate to contact us to assist with appropriate HR strategies.

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