Employer argues that dismissal was due to 'poor performance' during probation
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim after the worker said he was terminated because he reported a drunk colleague.
The worker said the co-worker had connections with senior management, among other allegations where he said the dismissal was unfair.
Meanwhile, the employer said that he was dismissed due to poor performance, adding that the worker was not even qualified to file the application before the FWC since he did not meet the minimum employment period.
Supplementary labour
In December 2021, the worker was offered casual employment as part of the crew for “Multiskilled Parks and Garden” through a service company called Hays. The employer, the Brimbank City Council, has around 85 employees in the Park Services department, where the worker was before his dismissal.
According to records, the employer sources supplementary labour from a range of service providers, including Hays, through a portal called “Comensura.”
Once the proposed use of supplementary labour is approved by the employer, management would then use the Comensura portal to identify whether any service providers have staff ‘on their books’ capable of meeting the skills and experience requirements of the position.
The employer then contacts a suitable candidate through the successful service provider. At the time of the worker’s recruitment, there were several vacancies in the Parks Services department that were being filled.
Performance report
At the start of his employment, the worker was subject to a progressive probationary performance report.
When the period finished, the report showed that the worker “has not displayed Brimbank values and at this point will not be offered an ongoing position.”
The worker said the probationary report “was not discussed with him at the time” and despite this, “he was asked to sign off on the reviews when he met with his co-ordinator.”
He added that “at no time during his employment was he counselled or warned regarding his performance prior to the meeting with management.”
Later, he met with the employer, and they told him that “his employment would cease immediately.” The worker said, “he was not given an opportunity to respond or explain why his dismissal should not proceed.”
He was asked to return his uniform and keys and immediately left the site. A letter confirming his immediate termination of employment was signed by one of the employer’s directors.
The worker rejected the employer’s explanation that his dismissal was due to poor performance. He claimed instead that he was dismissed because he reported that one of his colleagues “may have been under the influence of alcohol.”
He said that the co-worker “had a close personal relationship with several of the employer’s senior staff.
On the other hand, the employer said his termination did not have anything to do with his report and argued the dismissal was “based solely on his performance during his probationary period.”
The issue of ‘minimum employment period’
In its decision, the commission said it had to determine a crucial factor: the minimum employment period.
The worker maintained that he met the required time under the law to file an unfair dismissal claim. However, the employer said that he did not.
Under the Fair Work Act, the minimum employment period is: if the employer is not a small business employer — 6 months ending at the earlier of the following times: (i) the time when the person is given notice of the dismissal; (ii) immediately before the dismissal; or
(b) if the employer is a small business employer — one year ending at that time.
Since the employer was not a small business, the worker should have served at least six months.
The commission found that the worker started working for the employer on 20 June 2022 and his employment was terminated on 16 November 2022.
That means he had been employed by the employer for 21 weeks, consequently disqualifying him from filing his claim.
Thus, the commission did not decide on the case’s merits since it said the worker “is not a person protected from unfair dismissal. His application was dismissed.
