After dismissal for poor performance, review uncovers conduct that breached worker's contract
In a recent Fair Work Commission (FWC) decision, a dismissed employee was awarded compensation even after discovering conduct that breached his contract. The employee filed for an unfair dismissal claim but the employer argued that it discovered contract breaches and evidence of policy violations after reviewing his account. The employee said the discovery did not render his dismissal “reasonable” and “fair.”
The employee was a principal engineer at a retailer and generator of electrical power. He was dismissed after a performance review where he was assessed for “poor performance.” Before the FWC, he filed an unfair dismissal claim due to a lack of warning.
The employer submitted that the dismissal was “not unfair” and gave evidence that it reviewed the employee’s IT account. They discovered that, during his employment, he performed engineering consulting services for a separate business and also “copied numerous commercially sensitive and confidential documents” owned by the employer.
The employer said that “had [he] not been dismissed for poor performance, he would have been dismissed for breaches of his contract of employment, the code of conduct, and the Commonwealth’s Workplace Behaviour Policy and Conflicts of Interest Policy and Corporations Act 2001.”
After review of the evidence, the FWC found that dismissal over poor performance was a “valid reason” which was “sound and defensible,” but it did not consider his “conduct that came to light post-employment.”
The FWC said that the employer had a valid reason based on performance but since it was done without warning, an opportunity for the employee to show cause “would have been reasonable.”
It explained that the employer failed to submit “convincing evidence that had it known of the conduct, that it was so grave to repudiate the contract of employment, cause harm to the employer, or contrary to the employee’s duties.”
It ruled that the dismissal for poor performance was procedurally unfair but reinstatement was inappropriate, so it ordered payment of compensation.
The decision was handed down on 21 December.
