FWC says worker was given several opportunities to rectify behaviour
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who allegedly damaged the company’s reputation because of persistent misconduct.
In its defence, the worker contended that the grounds for his dismissal were not substantiated and that he was given no opportunity to defend himself throughout his employment.
At the time of his dismissal, the worker was employed as a foreman in a company that operates professional painting services.
While the relationship between the two parties started fine, the employer began to have concerns with the worker years after his employment in 2014.
The employer contended that around October 2021, the worker stopped coming into the office and failed to communicate with his employer. The worker’s performance as well as behavior also started to decline according to the employer.
“We had reports of him sleeping in his car from co-workers and leaving the site, but leaving the phone behind,” the employer said. “I believed that he was very unreliable at this time.”
Hence, the employer emailed the worker a letter of concern regarding issues concerning his employment particularly his “attendance, performance, quality of his work, his communication towards his co-workers and the Company’s employee.”
While the employer acknowledged that the worker’s performance and communication improved after the letter of concern, the improvement was only “short-lived.”
In the end, after several intervening developments, the employer dismissed the worker on 30 November 2022.
“The [employer] considered that the [worker’s] failure to attend work, deceptive conduct in misreporting his hours, and his disparaging comments had the ability to affect, and did affect, the [employer’s] reputation, visibility and profitability; amounted to a breach of the [worker’s] obligations under the contract of employment; and amounted to persistent misconduct given the prior warnings and letters of concern issued to the [worker],” the FWC stated.
Meanwhile, the worker contended that the employer never provided factual evidence for the claims against him.
He further argued that the reasons given for his dismissal during the workplace performance meetings in late-2022 were “suddenly been substituted by wholly different objections and accusations” which gave the worker no opportunity to defend himself.
Ultimately, in its decision, the Commission said it was satisfied that the worker’s dismissal was code-compliant. Hence, it rejected the worker’s unfair dismissal claim.
The Commission accepted all the submissions and reasons put forward by the employer concerning the worker’s dismissal as it was satisfied that there was indeed persistent misconduct from the side of the worker.
Contrary to the worker’s claim, the Commission noted that the worker was periodically warned regarding his conduct and had been given several opportunities to improve his performance.
