Was there sufficient warning? Director argues worker 'didn't listen'
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a casual forklift driver and a marble and ceramic company. The dispute centred around the worker's reliability, safety practices, and an eye injury he sustained on the job.
In a decision that underscores the importance of procedural fairness in terminations, the FWC found the dismissal to be unfair despite acknowledging valid reasons for the employer's concerns.
This case highlights the delicate balance employers must strike between addressing performance issues and ensuring proper processes are followed when ending employment relationships.
The worker was employed as a casual forklift driver from March to November 2023. His fortnightly hours varied considerably, ranging from 13 to 61 hours, with an average of about 32 hours per fortnight.
In October 2023, the worker suffered an eye injury at work when a piece of marble lodged in his eye. The injury took several days to identify and required hospital treatment, affecting the worker for approximately four weeks.
The employer claimed the worker had a pattern of poor attendance, frequently arrived late or left early without notice, and disregarded safety procedures. They also alleged he was not a good worker overall and had been verbally warned about his performance.
The company's director stated that the worker had been warned both orally and via text messages in July 2023 about the need to improve his communication and provide advance notice if unable to attend agreed shifts.
On the other hand, the worker asserted he was unfairly dismissed after providing a medical certificate for his eye injury. He also claimed he was pressured to work despite being certified as unfit for duty. The worker's wife provided a witness statement supporting his claim that he was pressured to come to work while booked off by the hospital.
The employer presented evidence of text messages sent to the worker, highlighting issues with his punctuality and communication. These messages included:
The employer also said that it “noticed a pattern of excuses provided by [the worker] for not attending shifts that he had agreed to work, and excuses for arriving to work very late.”
“[The worker]'s poor attendance caused significant disruption to warehouse operations and that [the worker] was warned both orally and via text messages in July 2023 that he needed to improve his communication and provide advance notice if he became unable to attend an agreed to shift,” the employer said.
“[The worker] was not following safety procedures, including carrying more than two crates at one time on the forklift which, he said, created a serious risk of harm to himself and others. [He] disregarded these instructions and on one occasion the crates eventually collapsed, and goods were damaged. [The company director] said of this "no one was thankfully injured, but [he] failed to explain why he was reckless and did not listen to previous warnings and instructions’," the employer added.
In relation to warnings given to [the worker], [the company director] said the following:
"After continued poor performance and dangerous work practices, sometime in July 2023, I spoke to [him] several times over the phone and in-person about how he was not meeting expectations.”
“[He] was given adequate opportunity to respond to these observations and improve his performance, but instead of taking responsibility and ownership of his poor work performance, he attempted to shift blame to other staff," the director said.
The worker denied any wrongdoing and insisted he was a full-time employee rather than casual. He claimed he worked "heaps" of full-time hours and never took smoke breaks.
However, his evidence was inconsistent, as he also stated that "a casual employee can go [to work] whenever they want to go."
The worker provided medical documents showing he was unfit for work for various periods in October and November 2023 due to his eye injury and other medical reasons.
He also claimed that the employer owed him three weeks' wages and had not paid him for the days he was booked off work.
The FWC found that there were valid reasons for the dismissal. The Commission noted:
"[The employer]'s concerns are generally all matters that employers can legitimately consider when deciding whether to allocate or continue offering casual hours to casual employees."
The evidence presented by the employer, including text messages and witness statements, established that the worker was indeed unreliable and failed to follow safety procedures. The FWC accepted that the worker's conduct over a lengthy period was unacceptable.
Despite the valid reasons, the FWC ultimately ruled the dismissal unfair due to a lack of procedural fairness. The Commission emphasised: "[The worker] was not afforded sufficient procedural fairness."
The employer failed to notify the worker of the reasons for his dismissal before making the decision to terminate his employment. Additionally, they did not provide him with a proper opportunity to respond to the allegations against him.
The FWC noted that while the worker was told several times during his employment that his conduct was not satisfactory, he was not allowed to respond to these concerns or present a case as to why he should not be dismissed.
The FWC said that even when there are valid reasons for dismissal, employers must ensure they provide employees with an opportunity to respond to concerns before making a final decision. The Commission further noted:
"[The employer] should have put to [the worker] its concerns about his conduct over several months, told that it was considering dismissal and invited his response."
Lastly, the FWC emphasised the need for clear communication and formal warnings:
"If [the worker]'s conduct over several months was the reason for dismissal then [the worker] should have been formally warned that if the conduct continued then his employment would be terminated."
This case serves as a lesson for employers on the importance of balancing performance management with procedural fairness in employment decisions, even when dealing with casual employees who have demonstrated ongoing performance issues.
