Friday 4 March 2016

Employee in a 'pickle' following employer's ‘commendable’ approach to dismissal

Effecting a fair dismissal is not impossible – a recent decision of the Fair Work Commission illustrates the importance of the ongoing management of unsatisfactory performance and a fair approach.

The facts Rooney v Pickles Auctions [2016] FWC 858 (9 February 2016)

Pickles Auctions dismissed an employee one afternoon after he arrived at work over one hour late that morning because he had slept through his alarm.   

The employee had a history of habitual lateness without prior notification to his Supervisor and had received at least 6 formal warnings regarding his performance and conduct (including lateness).

There was a valid reason for dismissal

The FWC held that it should have come as no surprise to the employee that this occasion of late attendance might represent 'the straw that broke the camel's back'.

The employer had taken a commendable procedural approach 

The employer’s ‘proper and just… and commendable’ approach included:
  • providing the employee with an opportunity to respond to the particular circumstances of lateness on each occasion;
  • convening a meeting with the employee to advise of the seriousness with which it was treating the matter and to inform the employee that his employment was in jeopardy;
  • providing the employee ample opportunity to offer an explanation for his conduct or make out a defence; 
  • adjourning the meeting to take advice, consult with relevant personnel management staff and carefully consider the circumstances before arriving at the decision to terminate the employee's employment; and 
  • convening a further meeting with the employee to inform him that his employment was terminated and providing both verbal and written notice of the reason for dismissal.

Not every dismissal (perhaps particularly in the public sector) will be as straightforward as this one but, no matter how complex the situation, the focus should be on proactively managing each instance of unsatisfactory performance by notifying the employee and giving them an opportunity to respond on each occasion.

If you would like further advice in this area, please contact:

Assistant Victorian Government Solicitor
Alice Felman
Principal Solicitor
9032 3015

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