Despite falsified job reports and absences, worker wins unfair dismissal claim
The Fair Work Commission (FWC) recently dealt with a case involving unfair dismissal claims from a worker against his former employer, with the latter maintaining the termination was due to performance issues and misconduct.
This case highlights the complexities surrounding unfair dismissal claims and the importance of proper procedures in terminating employment.
It underscores the need for employers to have clear documentation and follow due process, even when dealing with “problematic” employees.
Background of the case
The worker was employed as a full-time trainee pest technician for 11 months before being dismissed. His role involved inspecting and treating client sites for pest control, as well as servicing pest control devices and assets.
The employer, a company providing residential and commercial pest treatment and eradication services, employed around 1,600 people overall.
The worker was based in the Sydney branch, which did not have dedicated human resource professionals, and obtained HR assistance externally on a sporadic basis.
The employer provided electronic schedules for daily client site visits. After each visit, technicians were required to complete a Service Inspection Report (SIR) detailing the work performed, including time in, time out, services performed, and any observations or follow-up work needed.
This report was critical for business records and client billing purposes, as it served as proof that the requested work had been undertaken and justified payment.
Unfair dismissal claim and legal considerations
On 5 April 2024, the worker received a termination letter citing performance issues, including poor attendance, missed jobs, falsifying job completions, and going "missing in action" during workdays. The employer claimed these issues persisted despite ongoing coaching conversations.
The worker filed an unfair dismissal application with the Fair Work Commission, alleging his dismissal was harsh, unjust, or unreasonable. The FWC had to consider several factors under section 387 of the Fair Work Act 2009 to determine if the dismissal was unfair.
Key considerations included whether there was a valid reason for dismissal, if the worker was notified of this reason, and if he was given an opportunity to respond.
The Commission also had to examine whether warnings were given about unsatisfactory performance and if the employer's size or lack of HR resources impacted the dismissal process.
"Section 387 of the Act qualifies a claim for unfair dismissal:
'385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.'"
Employer's arguments and evidence
The employer argued that the dismissal was due to genuine performance and attendance issues, including falsification of time and work records.
They presented evidence of the worker's poor punctuality, unexplained absences, and instances of claiming to have completed jobs without actually attending client sites.
The employer's operations manager provided a file note detailing a phone conversation with the worker on the day of dismissal.
The note indicated that the worker had only actioned two out of six scheduled jobs that day and had falsely reported completing work at two sites without actually attending.
The branch manager testified that he had recently taken up his role after the worker's six-month probation period. He stated that the decision to dismiss was not taken lightly, but was necessary to maintain standards, emphasising that the worker did not seem to understand the gravity of his poor performance and its impact on both the employer and its customers.
Worker's response and mitigating factors
The worker argued that he was not given sufficient training for his role, arguing that his performance issues stemmed from inadequate preparation by the employer.
He also claimed to have passed his six-month probation without incident and suggested the employer's allegations were recent inventions.
Additionally, the worker raised personal and family circumstances as mitigating factors, emphasising the impact of his immediate dismissal on these aspects of his life.
He argued that his conduct, even if proven, should have resulted in a warning rather than termination.
Is it unfair dismissal?
After considering all evidence and arguments, the FWC found that while there was a valid reason for the worker's dismissal, the process lacked procedural fairness.
The Commission noted that the worker was not given advance notice of the allegations or the purpose of the termination meeting, nor was he provided with a genuine opportunity to bring a support person to the meeting.
The Commission stated:
"In view of the findings and conclusions set out in this decision, including as to the absence of what might be broadly termed procedural fairness in effecting the [worker's] dismissal, I find that the [worker's] dismissal was harsh, unjust and unreasonable (i.e. unfair). The [worker's] dismissal was a dismissal for a valid reason, absent procedural fairness, which in my view, in the overall facts and circumstances of this case, made the [worker's] dismissal unfair."
Consequently, the FWC awarded compensation to the worker. The case serves as a reminder of the importance of procedural fairness in dismissals, even when there are valid performance concerns.
It underscores the need for employers and their HR teams to document issues thoroughly, provide clear warnings, and follow proper termination procedures to avoid potential unfair dismissal claims.
