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The dismissal of an employee who failed to attend work because she was attending the Australian Open has been found to be fair and reasonable, under workplace law, by the Fair Work Commission.


Key facts:

  • the employee’s annual leave application was rejected because she did not have any accrued annual leave entitlements
  • the employee was directed in a meeting and in writing to attend work between 19 and 30 January 2015 – she did not attend work during this time as she was at the Australian Open
  • following a meeting on 2 February 2015, the employee was provided with a “show cause” letter, to which she responded, and her employment was subsequently terminated
  • the employee claimed that the dismissal was disproportionate to her conduct


The Fair Work Commission held that:

  • the dismissal was not unfair under workplace law – employee rights had not been breached
  • there was a valid reason for the termination of the employee’s employment


The Fair Work Commission based its decision on the following reasons:

  • the employee failed to comply with a lawful and reasonable direction from her employer
  • the employee was in a position to make an application for annual leave much earlier – she booked the trip in October 2014 but did not apply for leave until 16 December 2014
  • leave without pay is at the discretion of the employer and it was not mentioned in the employee’s employment contract
  • the employee was aware as early as September 2014 that she had exhausted her accrued annual leave
  • the employee “wilfully and deliberately flouted an essential contractual condition to attend work” which amounted to serious misconduct
  • the employer provided procedural fairness to the employee and its actions, prior to and subsequent to the misconduct, were fair and reasonable

Tips for Employers

The decision highlights the need for employers to:

  • ensure procedural fairness is applied where it is alleged an employee has engaged in misconduct
  • seek employment law advice as to whether an employee’s actions warrant dismissal or some other form of disciplinary response
  • advise employees when their accrued entitlements have been exhausted if that is the basis for the refusal of a request for annual leave
  • check employment contracts, awards, enterprise agreements and relevant policies and procedures as to the circumstances, if any, when an employee can take or request unpaid annual leave or annual leave in advance of accrual

More Information

If you have any questions in relation to this article or if you would like any assistance with other workplace law matters or if you need advice about employment contracts, please feel free to speak with or email one of our specialist employment lawyers on (02) 9635 7966 or