Dismissal for underperformance: Worker argues he didn't receive warning or notice

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case where a worker challenged his employer's claim that he was underperforming.

The worker argued he was never properly warned about performance issues and wasn't given a chance to respond before being terminated.

The case raised important questions about what constitutes proper performance management and when casual service counts towards minimum employment periods.

The worker also questioned whether his recent medical leave played a role in the employer's decision to end his employment.

Background and employment history

The dispute arose at a brick manufacturing business in Stawell, Victoria. The worker started as a casual employee in April 2023, later converted to permanent employment in February 2024, and was terminated in June 2024 after returning from medical leave due to a heart condition.

The worker's role as a production labourer involved various duties including brick stacking, forklift operation and truck driving. His job description covered forklift operation, truck driving, loading and unloading materials, and organising stock in the yard.

Evidence showed that towards the end of his employment, the worker spent about 70% of his time on duties other than brick stacking.

This became a key point of contention when the employer claimed brick stacking was his core duty and that he was deliberately avoiding it.

Performance management issues

The operations manager claimed he had observed through CCTV footage that the worker only stacked 60 bricks per hour, compared to an expected rate of 700. However, no footage was presented as evidence, and no records were kept of these observations.

The manager wrote in his diary after a yard meeting: "spoke to [the worker] regarding his role and the need to combine labouring duties with driving ... he must pack consistently at the same rate as everyone else."

However, the Commission found these informal discussions weren't clear warnings about potential termination.

The worker's supervisor later admitted that any performance-related comments "would have been made in a casual way" and were "never formal."

The supervisor also acknowledged he had never actually monitored how many bricks the worker stacked per hour.

The termination occurred shortly after the worker returned from medical leave for a heart condition.

Dismissal for alleged underperformance

The Commission found the decision to terminate was made before the final meeting, where the worker wasn't given a chance to respond to concerns about his performance.

As noted in the decision: "[The worker] must be aware of the precise nature of [the employer's] concern about his or her conduct or performance and has a full opportunity to respond to this concern."

The Commission identified several procedural failings in the termination process, emphasising that:

"Notification of the valid reason for dismissal must be given to [the worker] explicitly and in plain and clear terms. But crucially, this must occur before the decision to terminate the employment is made."

The decision further noted: "[The manager] had already determined to dismiss [the worker] before the meeting held on 20 June 2024, it does not appear to me his failure to offer [the worker] the opportunity to have a support person present would have impacted on what then transpired."

The Commission concluded: "I find [the worker] was not warned about unsatisfactory performance before the termination of his employment."

Based on these findings, the Commission ordered compensation of $15,067.77 plus superannuation, representing three months' pay - the time considered reasonable for a proper performance management process to have occurred.

The employer, which had 36 employees at the time, was not considered a small business under the Fair Work Act.