FWC upholds decision defending reasonable dismissal amid 'poor performance'
The Fair Work Commission (FWC) recently dealt with an appeal concerning the dismissal of a venue manager from a hotel.
The case centred on whether the dismissal was harsh, unjust, or unreasonable, and highlighted several crucial aspects of employment law and fair dismissal practices.
The hotel dismissed the worker from his position as a venue manager, citing poor performance and failure to meet his duties adequately. The worker's responsibilities included overseeing day-to-day operations, conducting stocktakes, managing staff rosters, and controlling cash.
The employer alleged that the worker had consistently failed to meet performance benchmarks, particularly in areas such as labour costs, stock control, and team leadership.
Initially, the FWC Commissioner determined that the worker's performance was indeed unsatisfactory, constituting a valid reason for dismissal.
The Commissioner noted several issues, including discrepancies in monthly stocktakes, unexplained deficits in petty cash balances, and failure to properly induct new staff on company policies, including workplace health and safety procedures.
Despite some shortcomings in the employer's performance management process, the Commissioner ruled that the dismissal was not harsh, unjust, or unreasonable.
The Commissioner considered that while there were some deficiencies in the employer's approach, the worker's entire employment period was marked by poor performance and a lack of insight into his underperformance.
Appeal grounds and worker's arguments
The worker appealed this decision on several grounds. He argued that the employer failed to meet its evidential burden under the Fair Work Act, particularly concerning notification of the reason for dismissal.
The worker contended that he was not properly notified of the reason for his dismissal before the decision to dismiss was made.
The worker also argued that the Commissioner made significant errors of fact regarding performance benchmarks and Key Performance Indicators (KPIs).
He disputed the Commissioner's findings about the consistency of labour budget benchmarks and his responsibility for meeting these targets.
Moreover, the worker claimed that the Commissioner erred in law by misapplying the statutory test for unfair dismissal and failing to give proper weight to relevant evidence.
A key point of contention was the admission of certain evidence, particularly a bundle of meeting minutes that the worker's representative argued were incomplete.
Employer's response and FWC's considerations
The employer countered these claims, asserting that the appeal should be dismissed. They argued that the Commissioner had correctly weighed the relevant factors and made appropriate findings based on the evidence presented.
The employer maintained that the worker had been made aware of his performance issues through regular meetings and discussions.
The FWC, in considering the appeal, examined several key aspects of employment law and fair dismissal practices. They looked at issues such as the burden of proof in unfair dismissal cases, the requirements for notifying reasons for dismissal, and the principles of procedural fairness in Commission proceedings.
One crucial point of contention was the admission of certain evidence, particularly a bundle of meeting minutes. The worker's representative argued:
"To the extent that these are complete documents or incomplete documents, if they be incomplete, the applicant objects to their tendering into evidence on the basis of not being a complete document and then irrelevant and attributed no weight."
This objection highlighted the importance of proper evidence handling in dismissal cases.
The FWC's decision
The FWC ultimately rejected all grounds of appeal, finding no significant errors of law or fact in the original decision. They emphasised that the Commissioner had followed proper procedures in receiving evidence and had not denied the worker procedural fairness.
Importantly, the FWC clarified several points of law relevant to HR professionals.
On the issue of notifying reasons for dismissal, the FWC stated:
"There is no requirement for a reason for dismissal to be provided in writing for the purposes of answering the question posed by s. 387(b)."
This clarifies that while written notice of termination is required, the reasons for dismissal don't necessarily need to be in writing.
Regarding the burden of proof in unfair dismissal cases, the FWC noted:
"To the extent there is a legal onus or something analogous to it, that onus is borne by an applicant for an unfair dismissal remedy and operates in relation to the matters in s. 385."
This underscores that the primary responsibility for proving unfair dismissal lies with the worker.
On the consideration of evidence, the FWC emphasised:
"It is well established that the Commission is required to afford procedural fairness to parties. The provision of procedural fairness includes the provision of a fair hearing, which involves an opportunity for all parties to put their case and to have it determined impartially and according to law."
The case also highlights the importance of maintaining consistent and clear performance benchmarks, and ensuring that employees are aware of these benchmarks and the consequences of not meeting them.
