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What are you investigating? Performance OR misconduct?

We highlight a recent case demonstrating why HR investigators need to understand what it is they’re investigating (ie. performance, conduct, or both). 

The Background

This case concerned an appeal[1] of an unfair dismissal decision to the Full Bench of the Fair Work Commission (FWC).

The employee in question (a child care worker) had worked for a child care centre for 21 years including 12 years as Director of the centre.

The dismissal arose as a result of a workplace investigation initiated into a report of the employee allegedly leaving a child unattended and unsupervised on 6 March 2012.  The employer ultimately dismissed the employee for that incident and also an earlier incident in 2011 where the employee had allowed children to play under a desk near power and computer leads.

In the initial unfair dismissal hearing, Fair Work Australia agreed with the employer’s dismissal action and held the employee had been fairly dismissed.

In the subsequent appeal hearing, the Full Bench of the Fair Work Commission found error in the FWA Commissioner’s original decision making and also did not accept the performance and other conduct issues raised by employer.  Ultimately, the Full Bench held that the former child care worker had been unfairly dismissed.

Performance vs conduct – the difference

In the context of this article, it is important to bear in mind that when the FWC is deciding an unfair dismissal claim (ie. whether an employee’s dismissal is harsh, unjust or unreasonable) it is required to take into account a number of factors.  One of those factors relates solely to unsatisfactory performance.  That is, if the dismissal pertains to the unsatisfactory performance, FWC must take into account whether the employee had been previously warned about the unsatisfactory performance in question.

Where alleged misconduct is concerned, however, the FWC does not have the same express obligation (ie. a requirement to consider whether a prior warning had been issued for the conduct).

So what is the difference between unsatisfactory performance and misconduct?

The Full Bench in this profiled case highlighted the following about unsatisfactory performance vs misconduct.

  • In some instances, there may be some overlap between the concept of unsatisfactory performance and misconduct; eg neglect of duty or poor timekeeping
  • There are also differences however
  • ‘Performance’ is intended to refer to the level at which the employee renders performance including factors such as diligence, quality and care taken
  • ‘Conduct’ – such as a refusal to perform work – is misconduct, not unsatisfactory performance

The concepts of unsatisfactory performance and misconduct were also considered in an earlier Full Bench case[2]. That is:

  • In general terms, unsatisfactory or inappropriate behaviour in the manner work is performed – is unsatisfactory performance
  • Inappropriate conduct which is extraneous to the performance of work – would normally be classified as misconduct

Takeaway Points

  1. If dismissal action is contested by means of an unfair dismissal claim, FWC will be required to consider a number of factors
  2. In the case of alleged unsatisfactory performance, it will be necessary for FWC to consider whether a prior warning had been issued over the performance issue
  3. In the case of a dismissal over alleged misconduct, the same consideration is not expressly required of the FWC
  4. When investigating unsatisfactory workplace behaviour, employers need to understand whether the matter being investigated involves unsatisfactory performance, misconduct, or both so they than can ensure that their disciplinary processes are not impacted upon by the unfair dismissal laws

[1] Read v Gordon Square Child Care Centre Inc T/A Gordon Square Child Care Centre [2013] FWCFB 762 (5 March 2013)
[2] Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200

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