The Fair Work Commission will inevitably find a dismissal to be ‘unfair’ if, despite having legitimate performance concerns, an employer does not give the employee a ‘fair go’ to both respond to those concerns and improve their performance.

In Cheek v ELB Pty Ltd,[1] the Commission took a close look at just what a ‘fair go’ means in finding the dismissal for a valid reason to be unfair.

Facts

The employee commenced working for the videoconferencing equipment installer in March 2017 as the NSW Project Manager. In November 2017, he received a first formal written warning which detailed a series of performance and conduct related issues, including:

  1. inadequate communication with, and not responding to direction from, his manager;
  2. failing to deliver projects on time and within budget; and
  3. arbitrarily not attending the office.

The letter requested the employee arrange weekly meetings with HR and stated the employee might be dismissed if his performance and conduct did not improve.  So far, so good.

However, the employee was only at work 13 days over the next 5 weeks, due to taking both sick leave and annual leave, and was only able to arrange two meetings during that time.  Further, when the employee challenged the HR manager over the veracity of her information, the HR manager simply advised the employee to repair his relationship with his manager, the company director.

On 20 December 2017, the employee met with the HR manager and executive advisor. The employee was not advised of the nature of the meeting, nor was he advised to bring a support person along. He was then sacked at the start of the meeting via a letter signed by the company director and paid one week’s pay in lieu of notice.

Findings

Commissioner Riordan concluded that, although the employer had a valid reason to dismiss the project manager, for knowingly failing to follow a lawful direction to not contact a client and failing to regularly update project notes, the termination was still unfair because:

  1. the employee was not given his “statutory right to a fair go” in the form of an opportunity to respond to the allegations contained in the 20 December letter in writing;
  2. the 20 December letter contained 4 allegations, 2 of which had not previously been put to the employee;
  3. the company director and HR manager had already made up their minds to dismiss the employee before the termination meeting, as evidenced by the pre-signed termination letter given to the employee during the meeting, along with the company director’s evidence she had “given up on the project manager because he was not trying to improve”;
  4. the HR manager ignored, and did not properly investigate, the employee’s protestation that her information was wrong – the lack of any independent process was a clear flaw in the investigation; and
  5. the HR manager’s advice at the two performance meetings that the most important thing for the employee to do was to repair his relationship with the company director suffered from the “obvious problem” that the company director was refusing to speak to him.

Key lessons 

Even where you have a solid reason to dismiss an employee for performance/conduct concerns, you must:

  1. give the employee a reasonable opportunity to respond to all of those concerns, preferably in writing;
  2. conduct a proper investigation which includes fairly evaluating all information objectively and not giving greater weight to the evidence of a senior employee merely because they are so senior, particularly where it is one person’s word against another’s;
  3. allow the employee a reasonable opportunity to address those concerns; and
  4. not make your decision to terminate the employee’s employment before giving them a genuine, as opposed to token, opportunity to ‘show cause’ why their employment should not be terminated.

[1] [2018] FWC 2198.

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