FWC reminds employers to follow proper procedures amid valid reasons to dismiss
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where the worker argued that his dismissal was unfair, claiming he wasn't given a chance to respond to allegations of time theft and poor performance.
He also raised concerns about the accuracy of the company's timekeeping methods and the fairness of the performance expectations placed on him.
The worker started his job with the company on 28 February 2020 as an environmental technician. His role involved maintaining and calibrating monitoring equipment for environmental assessments.
During his employment, the worker received several warnings about his performance. On 27 March 2023, he got his first warning letter from the company director. The letter reminded him to ensure timely calibration of monitoring systems, daily updating of checklists, and quick fixing of monitor faults.
A year later, on 20 March 2024, the worker received another warning letter. This time, the issues were more extensive. The company found problems with the setup of field-deployed systems, poor maintenance leading to many faults, and incorrect storage of equipment.
The letter noted that an audit had found deficiencies in Brisbane, where the worker was based. These included issues with Svan units, inaccurate checklists, and poorly set up field systems.
On 12 April 2024, the employer sent an email outlining more issues with monitor maintenance and checklist updates. The email showed a comparison of faults per state:
"Western Australia: 8
New South Wales: 22
Queensland: 47"
This data showed that Queensland, where the worker was based, had far more faults than other states. The worker was given three working days to fix these issues and had to provide daily updates on his work.
On 8 May 2024, the company ended the worker's employment immediately for misconduct. The employer gave two main reasons: falsely submitted timesheets and poor performance. The worker then filed an unfair dismissal claim on 26 May 2024.
In looking at whether the dismissal was unfair, the FWC considered several factors as required by the Fair Work Act 2009.
These included whether there was a valid reason for the dismissal, if the worker was told about this reason, and if he was given a chance to respond.
The FWC found that while there was a valid reason for dismissal based on poor performance, the worker wasn't given a chance to respond to the claims before losing his job. The Commission said:
"[The worker] was notified of the reasons for dismissal on 8 May 2024. However, [the worker] was not given an opportunity to respond as he was summarily dismissed."
About the performance issues, the FWC noted:
"The performance issues were still prevalent to his date of dismissal on 8 May 2024, with photographic evidence of the systems not being well maintained."
In the end, the FWC decided that the dismissal was harsh and unjust, although not unreasonable. The Commission explained:
"The dismissal was harsh given that [the worker] was summarily dismissed, the dismissal was unjust given that the time theft discrepancy of 44 hours should have prompted [the employer] to at least inquire with [the worker] regarding how he had completed his timesheets. However, the dismissal is not unreasonable given that [the worker] was made aware of the importance of taking care of the monitoring equipment, to update his checklist, and to provide accurate information about his checklists and tasks before his dismissal."
As giving the worker his job back wasn't considered appropriate, the FWC ordered the company to pay compensation.
The Commission worked out the compensation based on a four-step process, looking at factors such as lost wages, money earned since the job ended, and other possibilities.
The final order stated:
"[The employer] is ordered to pay the sum of $6,596.00 gross within 21 days upon issuing this Order to [the worker's] nominated bank account that was on payroll."
