Employee with 21 years of service awarded compensation despite valid dismissal
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a long-serving teacher at a Catholic college who was terminated after performance and conduct issues. The worker argued that his dismissal was harsh, unjust and unreasonable, citing medical issues, communication challenges, and lack of proper performance management.
The worker maintained he had made reasonable efforts to fulfill his responsibilities despite challenges, and that termination was a disproportionate response given his lengthy service record of over two decades with the same employer.
The case required the FWC to balance substantiated performance issues against procedural fairness concerns, raising important questions about how employers should manage long-term employees whose performance falls below expectations.
The worker had been employed as a teacher at a Catholic college for boys in Melbourne since October 2003, teaching VCE Latin, Religious Education, Italian and classical Greek. He had also served as an Independent Education Union representative and Health and Safety representative at the college.
The worker received a formal warning in October 2016 for failing to comply with reasonable directions. In December 2022, he received a second and final warning that included a requirement to participate in a 12-month "performance improvement plan" and mentoring program with the employer's director of faith and service.
During 2023, the worker had surgery for a hand injury that affected his ability to type and write efficiently. This required medical leave that interrupted his participation in the mentoring program. Both the worker and his mentor agreed the program should continue into 2024 as it hadn't been adequately completed.
In 2024, concerns escalated when the worker failed to provide timely feedback to students on their assessments. Changes to the student exam timetable meant some assessments were rescheduled to the last week of term 2, but results weren't provided until weeks into term 3.
The worker had been selected for jury duty in July 2024, which he hadn't notified the college about in advance despite being aware of the possibility since March. Additionally, he failed to respond to multiple requests from a colleague to tidy his desk and work area.
After a formal notice of concerns on 2 August 2024 and subsequent meetings, the principal provided the worker with a show cause letter on 27 August 2024. The worker's employment was terminated on 4 September 2024, with payment in lieu of notice.
"[The worker] accepts he had some difficulty submitting reports and marking results on time during 2024. Variously, he accounts for these delays by reference to difficulty he had with a new Canvas system; his delayed recovery from arm surgery that impacted his typing and writing proficiency; medical advice not to work during the Semester 1 break and his requirement to attend Jury service."
The FWC Commissioner found that the worker had failed to complete and provide students with their completed results until well into term 3, significantly outside the two-week timeframe expected by the college. Additionally, the worker hadn't properly informed his supervisors about these delays.
The worker had been clearly put on notice with the final warning from 2022, which he acknowledged in cross-examination meant he understood he could be dismissed if his performance didn't improve.
"I have found [the worker's] level of engagement with the responsibilities of his role to his employer, the gravity of his position and the need for his performance to improve unconvincing. His inability to recall that he was provided dedicated support in the form of [a buddy teacher] as a buddy to help him meet marking deadlines is implausible."
The Commissioner balanced the worker's 21 years of service against the substantiated performance issues. Although some allegations couldn't be proven, the Commissioner was satisfied that significant portions of the alleged conduct had occurred and provided valid reason for termination.
However, the Commissioner identified several procedural issues that rendered the dismissal harsh and unjust, though not unreasonable. These included confusion between "performance management" and "conduct management," the failure to provide feedback on the worker's interim reflections, and lack of clarity about the discontinuation of the performance improvement plan.
The Commissioner also found that the worker wasn't given a proper opportunity to respond to the principal's findings before a preliminary decision was made that termination was appropriate.
"I have been satisfied [the worker] was on a final warning, and that he understood his conduct needed to improve or he could be dismissed. I have found he failed to follow or reply to lawful instructions to tidy his work area. Also, that he failed to make his direct relevant supervisors aware of delays in meeting reporting deadlines and returning SAC results to students within the expectations of the College as required."
The FWC determined that reinstatement was inappropriate given the breakdown in the employment relationship. Instead, compensation was ordered based on an assessment of how long the worker would likely have remained employed if not dismissed.
The Commissioner concluded that even if the worker had been given the opportunity to continue the performance management plan through 2024, it was more likely than not that his employment would have ended at the conclusion of the 2024 school year anyway.
"I am not convinced the evidence supports a conclusion that [the worker] would have improved his conduct, performance or otherwise met the expectations required of him."
Compensation was calculated based on a 14-week period from termination on 4 September to 11 December 2024, minus pay already received and other earnings. The amount was also reduced by 25% to account for the worker's misconduct as required by section 392(3) of the Fair Work Act.
The final compensation order was $14,121.00 plus superannuation, to be paid within 14 days of the decision.
