Worker denied procedural fairness in 'a number of egregious ways'
The Fair Work Commission has slammed an employer’s procedurally flawed dismissal, describing it as “ham-fisted” and disrespectful to the worker involved. The employee was sacked following six months of continued performance concerns. Although the Commission was satisfied that the underperformance amounted to a valid reason, it found that procedural deficiencies rendered the dismissal unfair.
The employee worked as an engineer at a company that designs and manufactures buses. In January 2021, based on feedback from other engineers and his own observations, the employer opined that the worker was underperforming.
Over the next five months, the employer held two “performance meetings” with the employee. Although the employer advised that the worker would be “performance managed”, he failed to mention the consequences of continued underperformance to the worker.
In late June, production of a line of buses came to a halt when staff noticed that the weld wire used did not meet the brand’s specifications – a failure which was traced back to the worker. Deciding this was the “final straw”, the employer called the worker to a meeting, where he was dismissed.
The Hearing
The worker submitted that his dismissal was unfair. He conceded that, although occasional errors arose, they were relatively minor and always corrected. The worker also asserted that he had no adequate opportunities to improve his performance nor a change to respond to his employer’s concerns.
In contrast, the employer submitted the worker’s failures were “substantive and not just matters of form”. The employer stated that, eventually, “only tasks that were deemed non-critical” were assigned to the worker “as to do otherwise was deemed to be a business risk.”
Judgment
Although the Commission was satisfied that the employee’s underperformance constituted a valid reason for his dismissal, it found the employee was “denied procedural fairness in a number of egregious ways.”
“The so-called ‘performance management’ prior to dismissal was ham-fisted,” the Commission said.
“In being denied due process, [the employee] was denied being confronted with the blunt reality that he needed to urgently lift output and the standard of his work or else face being dismissed.”
This led the Commission to deem the dismissal harsh and unjust. It ordered that compensation of $21,471.14 plus superannuation be paid to the employee.
Key Takeaways
- Where necessary, employers must clearly warn an employee that continued underperformance will place them at risk of dismissal
- Employers should set benchmarks, key deliverables, and timeframes to help combat poor performance
- Employers must provide employees with an opportunity to respond to the reasons for their dismissal
- Even if there is a valid reason, failure to follow procedural requirements will typically render an employee’s dismissal unfair
