FWC upholds termination of employee for ongoing performance issues and behaviour

FWC upholds termination of employee for ongoing performance issues and behaviour

FWC upholds termination of employee for ongoing performance issues and behaviour

The Fair Work Commission has rejected an unfair dismissal claim from an employee who was terminated for ongoing performance issues and unacceptable behaviour over several years.

The employee ‘RB’ was initially employed by Summit Coatings Pty Ltd (“Summit”) as a full-time painter in February 2014. At the time of his dismissal on 30 November 2022, he was employed as a foreman as he had been promoted some years earlier to that role. Summit is a small business that operates a professional painting business specialising in strata, commercial and residential painting.

In evidence before Commissioner Donna McKenna, Summit indicated that it had first become concerned about RP in October 2021. At that time, his communication and attendance had begun to deteriorate, and co-workers indicated that he was not attending job sites and was frequently absent without authorisation.

It was difficult for Summit to monitor his attendance on site, but eventually, the business emailed him a letter outlining their concerns on 27 January 2022. Following this, there was a small improvement in his performance and communication, but that was short-lived.

After engaging an external HR firm to assist in managing RP, Summit faced further issues, including:

  • On 21 June 2022, a letter was issued to him outlining Summit’s expectations in relation to personal leave, work standards, and attendance.
  • On 15 July 2022, a further letter was issued regarding his failure to follow company policies and procedures after he left site without warning or authorisation to take care of his personal motor vehicle.
  • On 9 September 2022, Summit sent an email to him regarding his lack of communication and the need to improve communication of his start and finish times, job delays and other impacts.
  • In early October 2022, they became aware RB had exhibited inappropriate and disrespectful behaviour in the workplace, particularly engaging with his manager in a rude and inappropriate manner. Following a show cause meeting, a first warning letter was issued.
  • On 25 October 2022, Summit also sent an email reminding him of his working hours, including start and finish times and break times.
  • In late October 2022, he again behaved inappropriately towards his manager.

On 9 November 2022, Summit held a disciplinary meeting with RB and, after determining allegations against him were substantiated, issued him with a final written warning.

In late November 2022, there were further allegations that RP had engaged in ‘deceptive and dishonest’ behaviour after asking a sub-contractor not to wait for him on-site and then claiming he worked. After meeting with him to discuss the allegations, he was dismissed.

In upholding the termination, Commissioner McKenna noted,

“that, throughout 2022 and even as early as January 2021, the respondent regularly directed the applicant to communicate in a civil and professional manner, and to follow its policy by advising of absences from work: yet, despite these regular directions from the respondent, the applicant continued to engage in same conduct … I accept the respondent’s submissions around the applicant’s unauthorised and/or unreported failure to attend for work on various occasions, including the most recent absence preceding the dismissal”.

The application was dismissed.

RB v Summit Coatings Pty Ltd (U2022/12083) 9 June 2023

For queries about workplace behaviour, allegations of misconduct, managing performance,  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.

Ref: 362.0723

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