What type of decision is the following: should we fire an employee who is perpetually late?

We’re all late from time to time; it is part of life. From being delayed in traffic, broken down cars and even sleeping through an alarm, we’ve all been there!

In a survey conducted by the Heathrow Express, employee lateness costs the UK economy around £9 billion a year. Traffic caused by road works (41%) was the leading cause of tardiness, closely followed by public transport delays (29%), unforeseen circumstances (25%), torrid weather (18%), sleeping through an alarm (14%) and leaving something behind (12%).

But as an employer, punctual employees that are strong and passionate are critical to productivity as well as your overall success. One of the most common problems business owners and managers find impacts on the effectiveness of the company is employee lateness. Though managers assume staff members will occasionally be late, if employees begin to be late for work regularly , then actions need to be taken to protect the company and to improve the work ethic amongst the team.

Why do you need to deal with a persistently late employee?

As an employer, you expect staff members to be late every now and then. However, managers and employers cannot accept a situation where an employee is continually late for work, simply because this acceptance will only compound the situation and make it worse.

If you notice that a staff member is persistently arriving late, this should be dealt with accordingly. Otherwise, the employee in question may think that this is not an issue and start turning up late even more.  Furthermore, the late employee’s actions may even make other staff members consider why they are bothering to arrive at work on time, causing other late employees.

And the problem might not end there. Displaying acceptance of an employee’s persistent lateness may cause them to become more relaxed with other company policies, and you may find that the overall quality of work and work ethic of the team decreases.

At the end of the day, managers pay their staff for their time, and they request staff to work specific hours to ensure that all the work can be completed. Therefore, an employee that is continually late is effectively stealing time from the company. A late employee may start to fall behind on their work and either rush things, or leave them uncompleted. In addition, persistent employee lateness may cause tension between colleagues, as the team members who work alongside them may end up having to do more work in order to cover for their colleague causing some resentment and ill-feeling. Teams work most effectively when they work closely together and communicate well, so the overall effectiveness of the team may be compromised.

How can you deal with employee lateness?

There are no hard and fast rules for dealing with someone who is always late.Every manager is different, as is every employee and their personal situation. However, with this being said, there are some steps that you should take if you want to deal with a late employee and help them improve their punctuality at work.

A lateness policy in its own right might be considered excessive, but a section on lateness could be incorporated into existing policies and procedures covering Absence Management or Time and Attendance, for example. The policy should include:

– The standard expected of employees: details of working hours, highlighting that employees should be ready and prepared to start work as soon as their shift is scheduled to start.

– The procedure for reporting lateness: if an employee knows they’re going to be late, who should they report this to?

– Details of how working time will be tracked and recorded: do you use timesheets or do employees need to physically clock in when on-site?

– If applicable, provide details on how employees can make up the time they have lost from arriving late.

– A comment on the potential disciplinary action which could be taken for persistent lateness.

– A comment that lateness should be avoided as it is disruptive for everyone.

Make sure any new policies or updates to your  procedure are communicated to all employees and implemented fairly throughout the entire company. If this is something new to your company or if you have a particular problem with employee lateness, then consider running brief workshops for employees to attend in order to highlight the impact of lateness, go through the procedures with them and provide an opportunity for questions.

Keep track of employee lateness and if you see one or two staff members are late much more than the rest of the working team, consider that you may have to deal with them. Keeping records means you will be able to use them as evidence when you speak to the employee in question, showing them facts rather than voicing your opinion about their tardiness.

1. Proactively deal with the persistently late employee

Do not wait until you are angry and annoyed, or the rest of the team are feeling annoyed. Speak to the late employee before you get to this stage to help avoid it getting to that point. Schedule a meeting with the employee in question and in the interim, collate all the information you have regarding their working times, instances of lateness and reasons etc.

While important for you to broach the topic with an employee that is always late, be conscious of their privacy. Take them to one side to discuss their lateness rather than confronting them and voicing your concerns in the main office which may cause embarrassment.

There may be a sensitive or personal reason for their lateness, so approach the conversation with compassion and give them the chance to take in your concerns and say their piece.

Recognising changed or improved behaviours, no matter how minor, should be reinforced. Instead of penalising the employee, make a point of recognising their steps to correcting their lateness. Your employee will know the reasons why they are consistently late, so in theory, they should know the ways they can remedy them.

How to raise the issue of an employee’s lateness

When meeting with the late employee try to remain calm, do not make it personal and avoid getting angry. Speak through your concerns over their lateness, present them with evidence and refer back to your company’s policy on employee lateness. Explain that you want to understand what is causing their lateness and find out if there’s something you could help with.

Try to understand whether they If you have any personal problems, medical issues or any other reasons which might be causing them to be late. Remember to bear in mind any potential issues which could arise through discrimination and any adjustments which could reasonably be made by the company in order to support the employee.

Updated: Feb 2020

Read our fact sheet about ending employment.

Download the fact sheet:

What is termination of employment?

Termination of employment is when an employee’s employment with an employer ends. Employment can end for many different reasons. An employee may resign or can be dismissed (fired).

However it ends, it’s important to follow the rules about dismissal, notice and final pay. There are also different rights and obligations when a job is made redundant or when a business is bankrupt.

Commonwealth workplace laws have rules about terminating employment. These rules establish whether the termination of the employment was unlawful or unfair, what entitlements an employee is owed at the end of their employment, and what must be done when an employee is dismissed because of redundancy.

The Fair Work Ombudsman and the Fair Work Commission regulate Commonwealth workplace laws about terminating employment.

The Fair Work Ombudsman is responsible for:

• educating employers and employees about their rights and obligations
• ensuring compliance with workplace laws, and
• can prosecute employers that contravene workplace laws.

The Fair Work Commission deals with:

• unfair dismissal
• general protections dismissals
• unlawful termination applications.

If you have lost your job, contact the Fair Work Commission first if you think you were sacked because of:

• a reason that was harsh, unjust or unreasonable
• discrimination
• another protected right.

What is an unfair dismissal?

Unfair dismissal is when an employee is dismissed from their job in a harsh, unjust or unreasonable manner.

The Fair Work Commission may consider an employee has been unfairly dismissed if:

• the person was dismissed
• the dismissal was harsh, unjust or unreasonable
• the dismissal was not a case of genuine redundancy
• the employee worked for a small business and the dismissal was not done according to the Small Business Fair Dismissal Code.

What is harsh, unjust or unreasonable?

The Fair Work Commission will decide if a dismissal is harsh, unjust or unreasonable, and they consider all of the following circumstances:

• was there a valid reason for the dismissal related to the employee’s capacity or conduct
• was the employee notified of that reason and given an opportunity to respond
• if the employer didn’t allow the employee to have a support person present at any discussions about the dismissal, was that unreasonable
• whether the employee had been previously warned that their performance was unsatisfactory
• If the size of the business, or lack of dedicated human resource management specialists or expertise impacted on the procedures that the employer followed when they dismissed the employee, and
• any other matters that the Fair Work Commission considers relevant.

Who can apply?

Employees covered by the national workplace relations system can apply to the Fair Work Commission for unfair dismissal if they have been terminated by their employer, or forced to resign because of something the employer did, and they have worked the minimum employment period.

Minimum Employment period:

• Employed in a small business for at least 12 months. (A small business is defined as any business with fewer than 15 employees. This is calculated on a simple headcount of all employees who are employed on a regular and systematic basis).
• Employed in a larger business for at least 6 months.

(If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period).

To be eligible employees must also be:

• covered by an award, or
• covered by a registered agreement, or
• have an annual earnings rate which is less than the high income threshold (from 1 July 2022 this is $162,000). This threshold is indexed each financial year starting on 1 July.

For more information and to check if you are eligible to lodge an unfair dismissal application, take the Fair Work Commission’s unfair dismissal eligibility quiz 

Employees have to apply to the Commission within 21 calendar days of the dismissal taking effect.

If you think you have been unfairly dismissed you need to contact the Commission as soon as possible. Visit the Commission website to learn more about unfair dismissal

The Fair Work Ombudsman does not investigate unfair dismissal complaints.

What is the Small Business Fair Dismissal Code?

Small businesses have different rules for dismissal which are set out in the Small Business Fair Dismissal Code (the Code). A small business is any business with fewer than 15 employees calculated on a simple headcount of all employees who are employed on a regular and systematic basis.

The Small Business Fair Dismissal Code provides protection for small business employers against unfair dismissal claims, where an employer follows the Code.

The Fair Work Commission will deem a dismissal to be fair if the employer follows the Code and can provide evidence of this.

Download the Small Business Fair Dismissal Code and checklist 

What is an unlawful termination?

Unlawful termination is when an employee is dismissed by their employer for one or more of the following reasons:

• a person’s race, colour, sex, sexual orientation, age, mental or physical disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (some exceptions apply, such as where it’s based on the inherent requirements of the job)
• temporary absence from work because of illness or injury
• trade union membership or non-membership or participation in industrial activities
• being absent from work during maternity leave or other parental leave
• temporary absence from work to engage in a voluntary emergency management activity
• exercising or planning to exercise a workplace right by making a complaint or inquiry in relation to your employment, or participating in proceedings against an employer.

Generally, employees are protected from unlawful termination under the General Protections provisions of the Fair Work Act 2009. However, all employees are protected from unlawful termination. The Fair Work Ombudsman can investigate unlawful termination complaints. For more information on general protections, including who they apply to, please see the Fair Work Ombudsman Fact Sheet – Protections at work.

If you think you have been unlawfully dismissed you need to contact the Fair Work Commission as soon as possible. Employees have to apply to the Commission within 21 calendar days of the dismissal taking effect.

To check if you are eligible to lodge a general protections dismissal application, take the Fair Work Commission’s general protections eligibility quiz

To check if you are eligible to lodge an unlawful termination application, and for more information about unlawful termination go to the Fair Work Commission website

Should an employee be given notice of termination?

Generally, an employer must not terminate an employee’s employment unless they have given the employee written notice of the last day of employment. An employer can either let the employee work through their notice period, or pay it out to them (also known as pay in lieu of notice).

The amount of notice depends on the age of the employee and how long they have been employed on a continuous basis by the employer.

For more information on notice of termination, including the minimum notice period which must be given to an employee, and any exceptions, please see the Fair Work Ombudsman Fact Sheet – Notice of termination and redundancy pay.

What entitlements should be paid on termination?

When an employment relationship ends, employees should receive the following entitlements in their final pay:

• any outstanding wages or other remuneration still owing
• any pay in lieu of notice of termination
• any accrued annual leave and long service leave entitlements
• the balance of any time off instead of overtime that the employee has accrued but not yet taken
• any redundancy pay or entitlements if the employees has been made redundant and is eligible.

If an employee has taken leave in advance and their employment ends before they’ve accrued it all back, the employer can deduct the amount still owing from the employee’s final pay.

If an employee believes that they have not been paid for all of their entitlements when their employment ends, the Fair Work Ombudsman can investigate and take action to make sure that all entitlements are paid.

An employer can be liable to penalties in excess of $13,000 per breach (for an individual) and $66,000 per breach (for a company) if they have not complied with their obligations under relevant Commonwealth workplace laws. Penalty amounts are subject to change. You can check the current maximum penalties at fairwork.gov.au/litigation.

Redundancy

What is redundancy?

Redundancy occurs when an employer either decides they no longer need an employee’s job to be done by anyone, or the employer becomes insolvent or bankrupt, and terminates their employment.

The job itself, not the employee, becomes redundant.

Redundancy can happen when the business:

• introduces new technology (for example, the job it can be done by a machine)
• slows down due to lower sales or production
• closes down
• relocates interstate or overseas
• restructures or reorganises because a merger or takeover happens.

What redundancy pay might be payable?

An employee covered by the national workplace relations system, who has at least one year of continuous service and who works for an employer that employs 15 or more employees may be entitled to redundancy or severance payments (to a maximum of 16 weeks’ pay) under the National Employment Standards (NES).

Who doesn't get redundancy pay?

Some employees don’t get redundancy payments when their job is made redundant.

The following employees don’t get redundancy pay:

• employees whose period of continuous service with the employer is less than 12 months
• an employee employed for:
  • a stated period of time
  • an identified task or project
  • a particular season.
• employees terminated because of serious misconduct
• most casual employees
• trainees engaged only for the length of the training agreement
• apprentices.

There are special arrangements for employees whose employment transfers when the business they work for is sold. Find out more on our When businesses change owners page.

Employees of small businesses

A small business is one that employs fewer than 15 employees. Some small businesses don’t have to pay redundancy pay when making an employee redundant.

To work out if the business is a small business, count:

• all permanent employees employed at the time of the redundancy
• the employee and any other employees being terminated at that time
• only regular and systematic casual employees employed by the business at the time of the redundancy are counted
• employees of associated entities.

The size of the business is counted the earliest of:

• when the employee is told their employment will be terminated, or
• when the employee is given their notice of termination.

Awards can specify other situations in which redundancy pay does not apply to the termination of an employee’s employment.

For more information on redundancy pay, please see the Fair Work Ombudsman Fact Sheet – Notice of termination and redundancy pay.

Source reference: Fair Work Act 2009 (Cth) sections 121 and 123 

What happens if my employer goes bankrupt or into liquidation?

Sometimes businesses shut down because they aren't profitable or run out of money. This can mean that employees lose their jobs, and in some cases, the employer may not be able to pay them the wages and entitlements they are owed.

When a business is bankrupt, also known as going into liquidation or insolvency, employees can get help through the Fair Entitlements Guarantee (FEG).

The FEG, previously known as the General Employee Entitlements and Redundancy Scheme or GEERS, is available to eligible employees to help them get their unpaid entitlements. This can include:

• wages – up to 13 weeks of unpaid wages (capped at the FEG maximum weekly wage)
• annual leave
• long service leave
• payment in lieu of notice of termination – maximum of 5 weeks
• redundancy pay – up to 4 weeks per full year of service.

It doesn’t include:

• superannuation
• reimbursement payments
• one-off or irregular payments
• bonus payments
• non-ongoing or irregular commissions.

For more information visit the Department of Employment and Workplace Relations FEG webpage or call the FEG Hotline on 1300 135 040.

The Fair Work Ombudsman can assist, learn how we will help if entitlements haven’t been paid during voluntary administration.

Redundancy and unfair dismissal

Genuine redundancy is not considered unfair dismissal.

A genuine redundancy is when:

• the person’s job doesn't need to be done by anyone
• the employer followed any consultation requirements in the award or registered agreement
• there was no reasonable opportunity for the person to be redeployed within the employer’s business or an associated business.

When an employee's dismissal is a genuine redundancy the employee isn't able to make an unfair dismissal claim.

A dismissal is not a genuine redundancy if the employer:

• still needs the employee’s job to be done by someone (e.g. hires someone else to do the job)
• has not followed relevant requirements to consult with the employees about the redundancy under an award or registered agreement, or
• could have reasonably, in the circumstances, given the employee another job within the employer’s business or an associated entity.

Contact us

Fair Work Online: www.fairwork.gov.au

Fair Work Infoline: 13 13 94

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Contact the Translating and Interpreting Service (TIS) on 13 14 50

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Call through the National Relay Service (NRS):

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