A recent FWC decision highlights why employers should exercise caution when relying on prior written warnings to justify a dismissal.
BlueScope Steel dismissed an employee of 35 years for ‘operational negligence’ due to an incident in May 2013 involving failure to respond to a scrap metal jam on a conveyor belt he was monitoring.
In Peco Sirijovski v BlueScope Steel, the employee, Peco Sirijovski, had previously received written warning for entering a ‘safety exclusion zone’ around a rail line while operations were in process, which was in breach of company policy. The warning was drafted ‘very broadly’, according to lawyer Ben Keenan of Holding Redlich.
As a stand-alone incident, the scrap metal jam would not be deemed serious enough to justify termination; the termination was reliant on the fact the previous warning had been issued.
However, the Fair Work Commission (FWC) deemed the termination harsh, unjust and unreasonable, in part due to the fact the two events were not explicitly linked.
This was compounded by the fact the letter of termination implicated Sirijovski as having deliberately ignored the jam, and he was not given a chance to respond to the allegation.
“It is not fair or practical to give someone a warning, or put them on notice in relation to aspects of their future performance, if they have not contravened any of those aspects in the past. It is as if they are being warned for a breach that they have not committed,” The FWC noted. “Any warning must be appropriately and deliberately particularised. The final warning should have applied to the issue of Occupational Health and Safety and Critical Safety Procedures only.”
Key HR takeaways
Essentially, the ruling against BlueScope highlights the need for HR to draft written warnings and termination notices with precision. Keenan stated that employers should ensure:
- Written warnings are confided to the nature of the alleged unsatisfactory performance or conduct.
- Allegations of unsatisfactory performance or conduct are put to an employee in detail and the employee has an opportunity to respond before a decision is made about appropriate disciplinary action.
- Letters of termination are precise on what the grounds for termination are.
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