If faced with a difficult and belligerent employee who has a history of constantly challenging management’s authority and instructions, you might be looking for any excuse to sack them.
What if you had been dealing with this behaviour for 35 years?
In this case, when an opportunity finally presented itself, this employer did not hesitate to give the long serving employee a ‘first and final warning’.
When a further, separate, incident occurred, the employer had valid reasons to dismiss the employee.
However, the dismissal was found ultimately to be unfair.
In December 2012, the employee in question was given a ‘first and final’ warning and a 5 day suspension for being involved in a serious breach of a critical safety procedure.
The final warning was drafted in such a way to ‘cover the field’ in relation to ongoing performance and not simply in relation to compliance with safety practice and procedures.
In 2013, the employee was again involved in the disciplinary process when he failed to notice a scrap metal jam during a supervisory shift.
Following an internal workplace investigation, the employee was dismissed.
According to his termination letter he was dismissed for:
“continued poor performance…which resulted in operational negligence and failure to follow company policies and procedures”
“[As such] ongoing employment.. constitutes an unacceptable risk to the business”
The employee lodged an unfair dismissal claim with Fair Work Commission and in the subsequent hearing the employer admitted that the employee was dismissed for deliberate and wilful misconduct for purposefully ignoring the scrap metal jam.
Under the scrutiny of the Fair Work Commission multiple deficiencies within the employer’s internal workplace investigation, and the 2012 warning, caused the FWC to view the dismissal unfair.
The FWC agreed that the employee’s conduct was a performance failure and the employer was entitled to terminate his employment for that reason.
However, the employee was not notified of all the reasons for his dismissal, namely that his actions were deliberate and wilful misconduct. As a result, he had no opportunity to respond to each particular allegation.
The investigation process was viewed as rushed; the employee was interviewed twice, for a combined total of approximately 35 minutes.
The total workplace investigation was “incomplete and disjointed” and conducted by an employee who was not formally trained in investigative techniques or practices, who outsourced aspects of the investigation but then formed his own conclusions.
Finally, the 2012 warning could not be relied upon to boost the 2013 dismissal because it failed the ‘fair go’ test by putting the employee on notice for breaches that had not yet occurred.
Consequently, the termination of a highly experienced employee with no previous warnings relating to operational negligence was viewed as unfair.
The FWC awarded the employee the maximum compensation possible – the equivalent of 26 weeks wages (including shift loadings, penalties and overtime).
Lessons for Employers
Communication with employees, particularly during the disciplinary process, must be clear and precise.
A “one size fits all” approach to drafting warnings or dismissal letters risks not satisfying an employer’s procedural fairness obligations in the eyes of the law.
This decision reiterates that the FWC is willing to award maximum compensation to sacked employees who are unfairly treated during a disciplinary process.
An employer’s inability to appropriately manage allegations of workplace misconduct can easily result in a technically unfair termination, particularly when fundamental elements such as procedural fairness are lacking.
To its detriment, this employer discovered that failing to give a misbehaving employee a ‘fair go’ left it thousands of dollars out of pocket, despite the fact that it had a valid reason for the worker’s dismissal.
 Mr Peco Sirijovski v BlueScope Steel (AIS) Pty Ltd  FWC 9080