Employer argues individual was dismissed over performance issues
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who claimed he was forced to resign from his employment at a hotel in Cringila, New South Wales. The employer argued that the worker voluntarily resigned and was not dismissed.
In this case, the worker had a relatively short period of employment with the hotel, having started as a casual worker in December 2021 before being offered a full-time role as a gaming manager in January 2023 by the new owners of the hotel.
The case centred around the events that transpired leading up to the end of the worker's employment on 30 January 2024. The decision provides an interesting look at the factors the FWC considers when determining whether a dismissal was unfair.
Background of the case
The worker had requested a pay increase for himself and his fellow managers via email on 14 January 2024. The employer acknowledged the request and indicated it would be discussed when the relevant manager returned to work two weeks later.
On 29 January 2024, the worker received an email from the employer requiring him to attend a meeting the following day, with a warning that "failure to attend the meeting at the agreed time and date may result in your termination".
The worker attended the meeting on 30 January 2024, which lasted approximately 8 minutes and was recorded by the worker without the knowledge of the employer's representatives, which included the hotel's general manager and assistant manager.
The transcript of the meeting showed that the employer opened by telling the worker his performance was "just not cutting it" and suggesting that he resign. The worker was told he would receive two weeks' pay and a reference if he agreed to resign and signed a deed of release. If he didn't resign, he would not get a reference.
Arguments of the parties
The employer contended that the worker was not performing to a satisfactory standard. It alleged he did not wear the proper uniform, was not punctual, was often absent from work, and ignored requests to correct his behaviour.
The employer provided an attendance report showing the worker either did not show up to work, started late, or finished early for 221 out of 230 shifts in the previous 12 months. The general manager conceded in cross-examination that the worker had never been provided with a copy of the attendance report.
In response, the worker gave evidence that he only recalled being spoken to about his punctuality on one occasion in early 2023 and never since then. Regarding his attendance, the worker explained that he was instructed to "clock out" when he had finished his closing duties and when the gaming attendant had finished theirs, not when he was rostered to finish his shift.
He further stated that if he did leave before his scheduled finish time, he checked with the overlapping manager that he was allowed to finish at that time.
The worker also stated that he was only provided with a shirt from the employer, which he wore with black pants or shorts and black shoes. He did not recall ever receiving any feedback about his appearance or alleged failure to wear the uniform.
The employer also raised incidents regarding the worker's conduct on specific dates, such as failing to follow end-of-night procedures on 8 January 2024 and being found scrolling through social media in the back office on 24 January 2024.
The worker provided explanations for these incidents, stating that there were no patrons or outstanding duties on the night of 8 January 2024, and he admitted to being upset and wanting to compose himself on 24 January 2024 due to an earlier interaction with the general manager.
Was it unfair dismissal?
The FWC had to consider several factors under s.387 of the Fair Work Act in determining whether the dismissal was harsh, unjust or unreasonable. A key consideration was whether there was a valid reason for the dismissal related to the worker's capacity or conduct.
In the decision, the FWC stated:
"Having considered the evidence, I find that there was no valid reason for the [worker's] dismissal. I am not satisfied the matters relied on by the [employer] are sufficiently serious as to warrant his dismissal without prior warning."
The FWC also found that the worker was not notified of the reason for his dismissal or given an opportunity to respond to the performance issues that resulted in his dismissal, which related to procedural fairness.
Another important factor was whether the worker had been warned about unsatisfactory performance before the dismissal. On this point, the FWC noted:
"The evidence does not support a finding that the [worker] was clearly warned about this performance. Nor is there any evidence to support a finding that the [worker] was informed that the [employer] was considering dismissing him."
After carefully considering the evidence and the relevant factors under the Fair Work Act, the FWC was satisfied that the worker had proven his dismissal was harsh, unjust and unreasonable, and therefore unfair.
On the appropriate remedy, the FWC stated: "In this case, I am satisfied that reinstatement is inappropriate, and an order for payment of compensation is appropriate."
The FWC considered it was unlikely the worker's employment would have continued for a lengthy period, and had a proper performance management process been undertaken, his employment may have ended within four months if no improvement had been made.
Taking into account the worker's length of service, the remuneration he would have received had he not been dismissed, and his efforts to mitigate his loss by finding other employment, the FWC determined that compensation of $8,985 less taxes was appropriate, representing the difference between what he would have earned in the 16 weeks between the dismissal and the hearing, and his actual earnings over that period.
This decision highlights the importance of employers following procedural fairness and performance management processes when considering terminating an employee's employment. Failing to provide warnings, opportunities to respond, and valid reasons for dismissal can lead to a finding that the dismissal was unfair, resulting in orders for compensation.
