The consequences of taking a ‘slap on the wrist’ too far

In a recent decision, the Fair Work Commission considered the appropriate endpoint for an employee’s disciplinary action. The applicant had worked as a member concierge for a disability service provider (“the respondent”) since February 2020.

In December 2020, the respondent called the applicant to a disciplinary meeting. It alleged that she had delegated a one-person work task without first seeking management approval when she did not have the authority to do.

The applicant conceded that she had asked the company’s receptionist to monitor her phone and emails for urgent matters while the applicant completed the company’s pressing Christmas schedules. The applicant rejected the respondent’s submission she had “delegated” tasks, instead asserting that she had simply asked the receptionist for help, as the company was severely understaffed.

Nevertheless, the respondent alleged that the applicant had failed to follow management directions and delegated her scheduling phone to the receptionist without prior consent. The next day, the applicant sent written correspondence to the respondent to defend her actions, leading the respondent to issue her with a written warning.

The applicant took her annual leave over the Christmas and New Year period. On her return, the respondent invited her to a without prejudice meeting. The applicant submitted that her lawyer was concerned about this meeting and stated that the written warning that she had previously received should have ended the respondent’s disciplinary action.

The two parties were unable to agree on the terms of a potential settlement. Shortly after a second unsuccessful without prejudice meeting some weeks later, the respondent terminated the applicant’s employment, citing her “failure to comply with the company’s policies and procedures”, “inappropriate behaviour”, and “failure to follow reasonable management instructions” as the basis for her summary dismissal.

The Commission, however, was not satisfied that the respondent had shown a valid reason for the applicant’s dismissal. It found that the applicant’s written warning should have ended the disciplinary process rather than the escalated course the respondent took. 

Finding no valid reason for the applicant’s dismissal and subsequent procedural flaws in the termination process, the Commission was satisfied that the applicant’s dismissal was unfair. It awarded $6,220 in compensation to the applicant.

Key Takeaways:

• Employers must always ensure they have a valid reason when dismissing an employee
• A written warning to an employee usually marks the end of the disciplinary process
• Engaging in more severe discipline than is necessary may lead to a finding of unfair dismissal