Despite raising concerns over worker's performance, Brisbane business ordered to pay $5,000 in unfair dismissal case

Wednesday 13 September, 2017

The Fair Work Commission has found the dismissal of a human resources and training officer at a Queensland bitumen company was harsh and unjust, despite the business raising and documenting a number of concerns about the worker’s performance.

 

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Catherine Purcell started work at Road N Road Bitumen in October 2015 and according to evidence provided to the commission, after 10 months in the role, business manager Rex Wallman requested a meeting with her in August 2016.

The commission heard that at the meeting, Wallman read a prepared statement that said while he had done what he could to get Purcell up to speed in the position, the situation of her employment now appeared “futile”.

Purcell was informed it was time her employment arrangement came to a “halt”, and although there was a subsequent meeting for her to state a response the next day, she was then informed by phone her employment had been terminated.

The commission heard that Wallman had raised issues about performance a number of times over the course of Purcell’s employment and had documented some of these issues in diary notes.

However, the commissioner considered whether Purcell’s dismissal was unfair based on whether she had been counselled on the consequences of her underperformance and given a reasonable period of time to improve before a termination decision was made.

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Commissioner Jennifer Hunt ruled that because Purcell was not given adequate warning in the lead-up to her dismissal, and despite Rock N Road having legitimate concerns about her performance, the termination of her employment was harsh and unjust.

As a result, Rock N Road was ordered to pay eight weeks’ wages, or $5,192, plus superannuation.

This case is a reminder to businesses that formal written warnings to staff members are incredibly important when dealing with dismissals, says workplace lawyer, Peter Vitale.

“If an employee is not given advanced warning, that affects the procedural fairness,” he tells SmartCompany.

It is not necessarily enough to only point out problems because employers are required to give staff members a chance to respond before a decision is presented about their future in the workplace, says Andrew Douglas, national head of MacPherson Kelly’s workplace relations team.

Douglas says businesses should watch closely for issues of underperformance and then communicate the potential consequences of these concerns swiftly.

“The steps are these: intervene as quickly as possible and identify what are the shortfalls and the expectations,” he says.

“Make sure the person understands there will be disciplinary consequences for failing to meet those expectations.”

In this case, the business pointed out that the staff member in question was herself a HR representative, which complicated the process. Vitale says this situation is a strong reminder to have a third party available to give advice on staffing disputes.

“What it demonstrates is the importance of having outside advice,” he says.

“Even if a business doesn’t want to access that all the time, there are cost-effective sources of advice available.”

We protect businesses from Fair Work claims. If you're not 100% confident, call CCIQ on 1300 731 988 for a private discussion or download our free guide for employers.

This is a copy of an article from The Smart Company first published on 31 January 2017. 

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