Warnings, termination, unfair dismissal – It is important if as an employer you are going to rely on past warnings when terminating a employee, that the warning/s are relevant to the reasons for termination, failure to do so could see the Fair Work Commission hold the the termination was unfair as it did in the case of Taylor v Qube Ports P/L t/a Qube Ports (See below)

“The issue of tolerance of poor behaviour or performance is among the most delicate issues that managers and HR managers will face with employers weighing up questions of fairness, due diligence, productivity and workplace harmony – as well as legal aspects.

One potentially awkward scenario is when an employee has received official warnings that are dated or have expiry dates, that the employee duly sees out, only for the sub-par behaviour or performance to return soon after these dates.

The question is, how viable is it for an employer to refer back to expired warnings or a letter dated older than six month as grounds for further action or even dismissal?

It is important to remember if terminating or disciplining an employee not to confuse the purpose of warning letters, for example;

  • Previous warning letters that relate to behavioural issues or misconduct cannot relied on in cases of poor performance and vice versa.
  • If an employee breaches a safety guideline, process or procedure you cannot rely on a previous warning letters for unrelated behavioural or poor performance issues.”

Excerpt from the AWPTI Reasonable Management Action manual – http://awpti.com.au/reasonable-management-action-manual/

Warnings, termination, unfair dismissal – Taylor v Qube Ports P/L t/a Qube Ports

TERMINATION OF EMPLOYMENT – misconducts.394 Fair Work Act 2009 – application for relief from unfair dismissal

The applicant Mr Taylor was terminated for breach of a lawful and reasonable direction given by employer regarding loading of ship on 1 July 2016.

Evidence was provided that the applicant had received three prior warnings for threatening behaviour and failing to follow company procedure.

Mr Taylor submitted that on 1 July 2016 the breach was not deliberate and that he was under a lot of pressure that day. In response Qube argued that applicant’s submissions in relation to nature or quality of breach was irrelevant to question of valid reason and stated that that applicant knew about procedure and decided consciously and wilfully not to follow it.

The Commission found applicant breached company procedure and that he was familiar with it but as it was an isolated event and that it did not constitute a valid reason for dismissal and that the prior warnings were not relevant as they were dubious factually with dubious processes.

The Commission found in favour of the respondent that applicant’s previous warnings should be taken into account but only to the extent of whether or not the incidents (relating to the warning) had occurred but not relevance to the dismissal.  The Commission found dismissal was harsh, unjust or unreasonable, that reinstatement inappropriate. Compensation of $18,225.80 less taxation was ordered.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2238.htm

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