FWC: Did negative feedback justify dismissal?
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a salesperson who was terminated from his job at a company.
The salesperson, who had been employed since March 2022, was dismissed on December 22, 2023, for allegedly not following the company's quoting policy and procedure and for being “rude” and “sarcastic” to a customer.
In this case, the FWC discussed the importance of procedural fairness and proportionate disciplinary action in the workplace.
Background and alleged misconduct
The employer specialises in grouting and grouting services. The salesperson's troubles began when he noticed that his superannuation had not been paid properly.
He contacted his manager at the company's headquarters to address the issue. The following day, his car broke down, and he reported this to the sales manager, who informed him that there was no alternative car available and that he should enjoy a “very long weekend.”
Hours later, the salesperson received an email from the sales manager with a termination letter attached, stating that his dismissal was effective that day. The reasons cited for the dismissal were not following the company's quoting policy and procedures and being rude to a customer, which resulted in a complaint.
According to records, the worker only received three warning letters hours before his dismissal, all dated the same day. The letters alleged various incidents of misconduct, including not following procedures, being rude to a customer, and not adhering to the company's quoting pricing policy.
The worker’s ‘rude’ behaviour
The worker said that he remembered speaking to a particular customer over the telephone, whom he believed was called “Trish.”
“Her problem was water collecting under the floor. She said that the water was pooling out from underneath the tiles in the doorway,” he said.
The worker's evidence was that he told Trish that there must be a leak. Trish replied that “she did not think it was a leak ‘and said words to the effect of “I think I know what I am talking about. It's not a leak. I built this house.”
The worker then responded by saying, “I'm sorry, I didn't know you were a builder, I would have approached the conversation differently.” Trish then said, “I don't like your attitude.”
The worker said in his evidence that he and Trish did not “hit it off.” He also said that while he was “not intentionally” rude, he could see how his last statement might have been regarded as “sarcastic.”
He said that if “he had actually been discussing a job with a builder, he really would have approached the conversation differently.”
Worker’s opportunity to respond
During the FWC hearing, the worker provided explanations for the alleged incident. He argued that he had followed normal practice when contacting customers and that the allegation of not quoting properly was incorrect.
He also admitted that while he was not intentionally rude to a customer, he could see how his statement might have been perceived as “sarcastic.”
The FWC noted that the worker "was notified of the reason for dismissal only after he was dismissed. He was not afforded any genuine opportunity to respond to the allegations against him."
The warning letters were described as "superficial and perfunctory," suggesting that there was no real intention to allow the salesperson to improve his behaviour.
As the decision states:
"The second and third warning letters were ill-adapted copy-overs of the first that did not even correct the mistake in the third paragraph, each referring to the 'first written warning concerning the', where the sentence abruptly ends. The letters speak of an expectation of substantial improvement but the timing of these warnings suggests that there was never any real intention that [the salesperson] would be afforded an opportunity to correct any perceived shortcomings in his behaviour."
Valid reason but harsh outcome
The FWC found that the worker’s rudeness to a customer was substantiated and constituted a valid reason for dismissal. The worker himself acknowledged that he could understand how his comments might have been perceived as sarcastic.
However, the FWC considered the dismissal to be harsh, given the circumstances. It was the worker’s first offence, and the FWC believed that it should have attracted a disciplinary response short of dismissal, such as a final warning.
"[The salesperson] was rude to a customer, which was a valid reason for dismissal. This episode created a risk to the company's reputation. However, this was a first offence. In all of the circumstances, it ought to have attracted a disciplinary response short of dismissal, such as a final warning."
The FWC also noted that the dismissal process was "patently defective," with the company making no genuine effort to raise its concerns with the salesperson and sending warning letters at the last moment to create an appearance of due process.
In determining the appropriate remedy, the FWC considered various factors, including the worker’s length of service, remuneration, and efforts to mitigate the loss suffered. The FWC also took into account the salesperson's misconduct and applied a 25% deduction to the compensation amount.
The FWC reminded employers to act fairly and proportionately when considering the dismissal of an employee. It ultimately awarded the salesperson compensation of $39,205.34, taking into account his expected earnings had he remained employed for another 12 months, minus deductions for actual and future earnings, misconduct, and contingencies.
