FWC awards compensation to employee dismissed for dubious misconduct claims

FWC awards compensation to employee dismissed for dubious misconduct claims

A recent Fair Work Commission decision highlights the need for employers to ensure company policies, processes and procedures are clearly understood by employees before commencing disciplinary action. Failure to do so is likely to result in terminations ultimately being overturned by the courts.

The case involved an estimator who commenced work with Renfay Projects Pty Ltd (Renfay) on 2 August 2021. Renfray is a construction company based in western Sydney that employed 26 employees at the time of the estimator’s dismissal in February 2022.

The initial incident that led to the dismissal was the sending of a message by the estimator through an office ‘WhatsApp Group Chat’ on the morning of 21 February 2022. The intent of the message was to inform staff that he would be working remotely, as Sydney residents were advised to avoid unnecessary travel on roads due to the cancellation of train services. His understanding was that such communication was typical within the company and acceptable to him and other employees during his employment.

Shortly after sending the message, the estimator was contacted by Renfay’s Accounts/Human Resources Manager, who suggested it was unacceptable for him to work remotely without first checking with her, and it was her understanding from the company director that employees were not to work remotely without prior approval, and that they needed a good reason to do so.

The estimator offered to go into the office that day. At approximately 2 pm, he received an email invitation from the HR Manager to attend a “HR Meeting” at 4 pm with herself and the company’s Senior Estimator, his direct supervisor. The nature of the meeting was not disclosed, and there were no attachments or an agenda attached to the invitation.

At the meeting, the estimator was given a ‘Counselling Letter’, which lacked details about concerns with his performance and also purported to constitute a written warning.

As noted by Commissioner Ian Matheson in describing this meeting,

“The Applicant was not given prior context of the meeting or an opportunity to bring a support person. It was unclear to the Applicant whether the meeting was a performance review, a performance management session or a meeting for disciplinary action, and he was not provided with an opportunity to prepare for it”.

The following day, the estimator had brief phone conversations with both the director and his supervisor, during which he raised concerns about how the meeting was conducted.

He was dismissed later that day based on claims of misconduct by him during his employment.

While Commissioner Matheson accepted that the estimator had become agitated during the meeting and had most likely raised his voice,

“taking into account all of the circumstances, including the Applicant’s apparent confusion around why he had been reprimanded for notifying his colleagues of his intention to work from home, who he was to take directions from and communicate with, the impromptu 6-month review meeting that he was not prepared for and which would have likely been a surprise to him … I am not satisfied that the Applicant’s conduct was such that it justified the Applicant’s dismissal”.

In ruling that there was not a valid reason for dismissal, Commissioner Matheson awarded the estimator an amount of $7,788.48, noting his relatively short period of employment and the likelihood that the employment would not have continued beyond a further eight weeks if proper performance management processes had been followed.

DH v Renfay Projects Pty Ltd (U2022/2812) 16 September2002

For queries about performance management, disciplinary meetings, misconduct, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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