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Unfair dismissals benchbook

An overview of legal procedure & case law

Warnings – unsatisfactory performance

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  • When are warnings relevant?
  • How should a warning be given?
  • Case examples
  • References

 

See Fair Work Act 2009 s.387(e)

When are warnings relevant?

Warnings become relevant when an employee is dismissed for unsatisfactory performance.

Unsatisfactory performance is more likely to relate to the employee's capacity to do the job than their conduct.[1]

Performance includes 'factors such as diligence, quality, care taken and so on'.[2]

The Fair Work Commission must take into account whether there was a period of time between:

  • an employee being warned about unsatisfactory performance, and
  • a subsequent dismissal.[3]

This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.[4]

There is no legislative requirement specifying that an employee must be given a certain number of written warnings before being dismissed for poor performance. For example, there is no rule that an employee must receive three written warnings.

However, industrial tribunals over the years have consistently upheld unfair dismissal claims where an employee has not had an opportunity to respond to performance concerns or to improve their performance over a reasonable period of time.

How should a warning be given?

Warnings must identify the relevant aspect of the employee's performance which is of concern to the employer.[5] A mere exhortation to improve is not sufficient.[6]

The warning must make it clear that the employee's employment is at risk unless performance improves.[7]

An exhortation is something said or written in order to strongly encourage or persuade a person to do something.

Case examples

Employee was warned

Employer followed a fair performance management process – employee was warned, informally and formally

A v The Commonwealth of Australia, represented by Centrelink [2011] FWA 3532 (O'Callaghan SDP, 6 June 2011).

Permission to appeal was refused in [2011] FWAFB 6612 (Watson VP, Ives DP and Bissett C, 11 October 2011).

The employee was dismissed for failing to achieve the goals in her performance improvement plan. The employee had received several warnings, both formally and informally.

It was found that, although the employee had a psychiatric condition, the employer was not being unfair in applying normal performance expectations. It was held that the dismissal was not harsh, unjust or unreasonable.

Employee received a number of warnings about both performance and conduct

Aperio Group (Australia) Pty Ltd (T/a Aperio Finewrap) v Sulemanovski [2011] FWAFB 1436 (Watson SDP, McCarthy SDP, Deegan C, 4 March 2011), [(2011) 203 IR 18].

The employee was dismissed after a long history of misconduct and performance-related issues. The employee was involved in multiple counselling sessions and received both written and verbal warnings over a 2 year period. There was no improvement demonstrated by the employee.

The Commission found that the employee was warned about his unsatisfactory performance before the dismissal. He received written warnings in relation to the loss of product/faulty product, not wearing a proper uniform, failure to check production orders, not running machines at proper speed, absences from his work station during working hours without reason and failure to wear personal protection equipment. Multiple written warnings were given in relation to some of those issues and the warnings often dealt with more than one issue. Attendance issues and absences from the factory, without authority, were subject to written and informal counselling on multiple occasions and one written warning in respect of absences from the factory.

It was held that there was a valid reason for the dismissal and sufficient warnings were given. The application was dismissed.

Employee was NOT warned

No warning regarding poor performance given – found that the employee was unfairly dismissed

Martin v Donut King Chirnside Park T/A Hersing Pty Ltd [2012] FWA 2905 (Smith DP, 19 April 2012).

The employee was employed as a casual employee in a small business for some 5 years. She was terminated for alleged poor performance but received no warnings.

It was found that an employee must be warned that her poor performance may result in termination. Such a warning was not given in this case. The termination was found to be harsh, unjust and unreasonable.

Warnings for poor performance not consistent

Andersen v Acquista Investments P/L and Veolia Environmental Services (Australia) Pty Ltd T/A Integrated Waste Services [2011] FWA 4560 (Hampton C, 28 July 2011).

The employee was dismissed for late attendance, as well as other matters such as the failure to obey a no smoking directive. The Commissioner found that there was evidence that management and other employees also smoked in the office in contravention of the directive. The Commissioner similarly found that the warnings in relation to late attendance were a valid concern but inconsistently applied.

The Commissioner held that the inconsistency in the employer's attitude towards late attendance and smoking undermined the directives and warnings given. It was held that there was no valid reason for dismissal and that the termination was unfair.

No formal warnings provided

Dean v Sybecca Pty Ltd t/as Sleepy Lagoon Hotel [2010] FWA 8462 (Richards SDP, 4 November 2010).

The employee was dismissed for performance and conduct issues. It was found that the employee was never expressly warned that his employment was in jeopardy.

It was held that, although the employer was a small business and did not have human resources expertise, the employer was required to openly communicate with the employee about their concerns and to provide an opportunity for improvement. It was held that the termination was harsh, unjust or unreasonable.

Pre-prepared scripts and written warnings suggested pre-determined outcomes

Joshi v Panasonic Australia Pty Ltd [2010] FWA 2946 (Cambridge C, 15 April 2010).

The employee was dismissed for poor performance. It was found that the employer had pre-prepared a script regarding the warnings to be given before disciplinary meetings took place. This suggested that the meetings had pre-determined outcomes.

It was concluded that the meetings were simply a 'mechanical process' that did not genuinely afford the employee an opportunity to respond to the warnings or affect the outcome of the meeting. It was found that there was no valid reason for dismissal and held that the termination was unfair.

Non-compliance with an enterprise agreement

Mawkes v State of Victoria (Department of Human Services) (2006) 161 IR 34.

The employee was dismissed for misconduct. The employee was issued a final warning after the employer conducted an investigation into the misconduct.

The Federal Court found that the employer was obliged, under the applicable certified agreement, to comply with a number of procedural steps before issuing a warning. The Court held that the warning was invalid as the correct process had not been followed.

References

[1] Annetta v Ansett Australia Ltd, Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 16, [(2000) 98 IR 233]. See also Davis v Collinsville Coal Operations, PR953370 (AIRCFB, Harrison SDP, McCarthy SDP, Redmond C, 19 November 2004) at para. 49; Fischer v Telstra Corporation Limited, Print R2558 (AIRCFB, Ross VP, Duncan DP, Redmond C, 1 March 1999) at para. 29.

[2] Annetta v Ansett Australia Ltd, Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 16, [(2000) 98 IR 233].

[3] Johnston v Woodpile Investments T/A Hog's Breath Café - Mindarie [2012] FWA 2 (Williams C, 6 January 2012) at para. 58.

[4] ibid.

[5] Fastidia Pty Ltd v Goodwin, Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) at para. 43. See also Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at paras 79–80, [(2000) 98 IR 137].

[6] Fastidia Pty Ltd v Goodwin, Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) at para. 44. See also Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50, 60 (Wilcox CJ).

[7] Fastidia Pty Ltd v Goodwin, Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) at para. 45; see also Sookanathan v Victoria Police [2019] FWC 8309 (Gregory C, 13 December 2019) at para. 136.

Updated time

Last updated

15 January 2020

 

 

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      • Contract for a specified season
      • Training arrangement
      • What is a transfer of employment?
      • Periods of service as a casual employee
      • What is a genuine redundancy?
        • Job no longer required due to changes in operational requirements
        • Consultation obligations
        • Redeployment
      • What is the Small Business Fair Dismissal Code?
    • What makes a dismissal unfair?
      • Valid reason relating to capacity or conduct
        • Capacity
        • Conduct
      • Notification of reason for dismissal
      • Opportunity to respond
      • Unreasonable refusal of a support person
      • Warnings – unsatisfactory performance
      • Size of employer's enterprise and human resources specialists
      • Other relevant matters
    • Making an application
      • Application fee
      • Timeframe for lodgment
      • Extension of time for lodging an application
      • Who is the employer?
      • Multiple actions
      • Discontinuing an application
    • Objecting to an application
    • Commission process
      • Conciliation
      • Hearings and conferences
      • Preparing for hearings and conferences
      • Representation by lawyers and paid agents
      • Rescheduling or adjourning matters
      • Bias
    • Remedies
      • Reinstatement
        • Order for reinstatement cannot be subject to conditions
        • Order to maintain continuity
        • Order to restore lost pay
      • Compensation
        • Calculating compensation
        • Mitigation
        • Remuneration
        • Other relevant matters
        • Compensation cap
        • Instalments
    • Dismissing an application
    • Evidence
    • Costs
      • Costs against representatives
      • Security for costs
    • Appeals
      • Staying decisions
    • Role of the Court
  • Waltzing Matilda and the Sunshine Harvester Factory
    • Introduction
    • The book
      • Book launch
    • The film
      • Film launch
    • Historical material
      • 38 Hour Week Wage Principle [1983]
      • 40 Hour Week Case [1947]
      • 44 Hour Week Case [1927]
      • Apprenticeship indentures
      • Australian Minimum Wage and fitter (trades) rate since 1906
      • Boot Trades Case
      • Careers in Bootmaking and Boot Repairing
      • Cattle Industry Case 1966
      • Commercial Printing Case [1936]
      • Commonwealth Conciliation and Arbitration Act 1904
      • Cost of living newspaper articles from the early 1900s
      • Debates
      • Equal Pay Case 1969
      • Equal Pay Case 1972
      • Fruit Pickers Case
      • Gas Employees Case
      • Graph of Australian Minimum Wage since 1906
      • Harvester Case
      • Historic case judgments on the Fair Work Commission's website
      • Kingston's evidence
      • Linesmen's Case
      • Maternity Leave Case [1979]
      • Metal trades base level minimum wages [1967–2015]
      • Methods of wage adjustment
        • Establishing an Australian Minimum Wage 1907?1922
          • The origins of the Australian minimum wage
          • The 'needs' principle and 'capacity to pay'
          • Women's wages
          • First indexation decision
        • Quarterly indexation 1922–1953
        • The Great Depression 1931
        • Prosperity loadings 1937
        • World War II 1939–1945
        • The post-war period: 1953–1965 basic wage inquiries
        • The total wage 1966–1967
        • Removal of discrimination in award rates
        • Reintroduction of quarterly wage indexation 1975–1978
        • Six monthly wage indexation 1978–1981
        • Wage explosion 1981–1982
        • Reforming awards and work and management practices 1987–1991
        • Six monthly wage indexation 1983–1987
        • Enterprise bargaining and a minimum wage safety net 1991–1996
        • Statutory adjustments
        • The minimum wage in real terms
      • Mrs Beeton's cookbook
      • Paternity Leave Case [1990]
      • Personal/Carer's Leave Test Case [1995]
      • Piddington report
      • Re Bagshaw [1907]
      • Significant cases on the Fair Work Commission's website
      • Statistics for the purpose of comparison with the Australian minimum wage
      • The Amalgamated Society of Engineers v. The Adelaide Steam-ship Company Limited and Others
      • The Australian minimum wage from 1906
      • The Federated Marine Stewards and Pantrymen's Association v. The Commonwealth Steamship Owners' Association and Others
      • The Victorian minimum wage 1896
        • Legislative Council Second Reading Speech to the Factories and Shops Bill 1896
      • The first Award: 1906 Steam-ship Crew
      • 100 years of the minimum wage—Statistical comparison
    • Mrs Beeton's cookbook
    • Glossary
    • Related sites
    • Educational materials
  • AWRS First Findings report

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