Fair Work finds performance shortfalls not sufficient to constitute a valid dismissal

Raising performance issues can make for an uncomfortable chat

Fair Work finds performance shortfalls not sufficient to constitute a valid dismissal

In a recent case, the Fair Work Commission considered an employee who was unfairly dismissed for her “ongoing failure to acknowledge her performance and behavioural shortfalls.” The case highlights that employees are often not to blame for performance issues where those issues have not been formally raised with them. Ultimately, the Commission found in the employee’s favour and awarded her almost $40,000.

Angela Hastings was employed as a new homes sales consultant at Vantage Building Group (“Vantage”). One of her duties was to show prospective clients through a Vantage display home, which doubled as her office. In January 2021, Vantage’s director, Shane O’Brien, received a complaint from a couple who attended Hastings’ display home, stating that they were disappointed by her “lack of acknowledgement and zero customer service.” O’Brien organised a meeting to discuss the complaint with Hastings and Vantage’s sales manager, Tonia Ivanni.

Ivanni stated that Hastings grew defensive when the customer complaint was raised. She alleged that both O’Brien and Hastings exchanged profanities before Hastings abruptly left the meeting. Following the meeting, Hastings emailed Vantage’s HR manager, stating that she felt “attacked, bullied, intimidated and abused” and denied that her leaving the meeting constituted her resignation.

Two days later, Hastings received a show cause letter. Although she attended a show cause meeting the next day, she asserted that Vantage did not provide her with a “true show cause process” nor written notice of her dismissal.

The Hearing

Hastings submitted that there was no valid reason for her termination. She stated that when the disgruntled customer attended the display home, approximately 90 people were visiting, and she was “tied up with a potential customer while others came in.” Hastings also denied the allegation that she swore at her manager but submitted that, in any case, it did not provide a valid reason for her dismissal.

In contrast, Vantage submitted that Hastings’ dismissal was due to her “rude behaviour” and her failure to address performance shortfalls. It further stated that the dismissal “did not ride on [Hasting’s] swearing alone.”

Although the Commission accepted there were some issues with Hastings' performance, it noted that Vantage did not formally address those matters with Hastings until the show cause process. It also found that it was only after the first meeting that Vantage began gathering other information to support its decision to dismiss Hastings just days later.

With this, the Commission found that Hastings’ dismissal was disproportionate to the gravity of her conduct. It awarded her $36,217 in compensation and $3,440.90 in lost superannuation. 

Key Takeaways

  • Employers must ensure that any performance shortfalls are raised with the employee in a timely manner
  • Where appropriate, employers should also ensure workers are provided with adequate training to raise performance
  • Employers should refrain from fostering a workplace culture of obscene language
  • An employee’s decision to abruptly leave a meeting should not be taken to signify their resignation

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