The benefits of a 'measured' and 'considered' approach to termination of employment

Factual background

Pickles Auctions Pty Ltd (Pickles) had engaged Mr Rooney for over 6 years in a detailer/floor staff role.

Mr Rooney's employment history demonstrated an inconsistent level of performance, including  habitual lateness for work and several incidents of unsatisfactory conduct.

Between February 2011 to May 2015, Mr Rooney was issued with 6 written warnings regarding his performance, in addition to frequent verbal warnings for failing to attend work at his scheduled start time and failing to notify his supervisor prior to his scheduled start time of his lateness for work as required under Company policy.

Most recently in February 2015, Mr Rooney received a first warning for poor attendance and misconduct and in March 2015, a second and final warning for poor attendance, as well as a further second and final warning in May 2015 regarding his attendance at work in an unshaven/un-presentable state.

In June 2015, Mr Rooney slept through his alarm and, almost an hour after his scheduled start time, telephoned his supervisor to advise him he would be late for work. Mr Rooney arrived for work shortly afterwards.

Later that day, Pickles met with Mr Rooney and sought a response from him as to why he was late for work. Mr Rooney's response was that he thought "the time was earlier than it was".

Pickles subsequently advised Mr Rooney that his job was in jeopardy due to his continued poor attendance and provided Mr Rooney with a further opportunity to comment, after which the meeting was adjourned to allow Pickles time to consider the matter.

After consideration of Mr Rooney's work history, his explanation for his lateness, failure to notify his supervisor of his lateness in accordance with the Company policy and responses to the matter, Pickles again met with Mr Rooney and advised him his employment was terminated. Mr Rooney was also provided with a letter confirming his termination, outlining his prior warnings and noting that although he had been given an opportunity to improve his attendance, there had been no adequate improvement. Mr Rooney was paid all his statutory entitlements and 4 weeks' notice in lieu.

During the termination meeting Mr Rooney reacted angrily, swore at Pickles employees and said to them "I'll see you in Court".

Mr Rooney subsequently lodged an application for unfair dismissal remedy in the Fair Work Commission.

Findings

The Fair Work Commission found Mr Rooney had been terminated for a valid reason due to his repeated failure to attend work at the requisite start time and without providing appropriate notification of his lateness. In addition, Pickles was entitled to rely on the prior documented incidents of misconduct as an additional valid basis for dismissal.

It was further found the procedure Pickles "adopted to deal with the dismissal contained no identifiable deficiency" as it had:

• notified Mr Rooney of the reason for his dismissal;
• ensured that on each occasion that it formally raised a complaint with Mr Rooney regarding his lateness or misconduct, that he had an opportunity to respond to the particular circumstances;
• took an approach on the day of termination that was "commendable" and "measured and considered" given that Pickles advised Mr Rooney of the seriousness of the matter and provided him with every opportunity to provide an explanation or make out a defence, adjourned the meeting rather than making an immediate decision regarding termination, took advice and considered the circumstances prior to making a decision to terminate;
• provided ample prior warnings to Mr Rooney which were clearly documented; and
• utilised employee relations management specialists who contributed to a proper and just process in terminating Mr Rooney.

The application was dismissed.

Lessons for employers

When considering terminating an employee, employers should ensure, amongst other matters that:

• there is a valid reason for the termination;
• that the termination is a proportionate response to the reason for the termination;
• the employee has been notified of the reason for the termination;
• the employee is provided with an opportunity to respond to any reason for termination related to their capacity or conduct;
• there is no unreasonable refusal to allow the employee an opportunity to have a support person present;
• if the dismissal relates to unsatisfactory performance, that the employee has been warned about the unsatisfactory performance before dismissal.

In addition, as in this case, employers should ensure they retain clearly documented prior warnings and discussions regarding employee performance and conduct.

If you would like to know more about this case or matters related to employee terminations generally, please contact National Workplace Lawyers on  +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.