Given that dismissal of an employee is not always straightforward, and subject to appeal under unfair or unlawful dismissal laws, the question “when is it okay to sack someone?” is a reasonable one.
Managing performance through the effective application of expectation setting, empowerment, evaluation, rewards and effective feedback will generally ensure a positive response from employees in terms of their workplace performance and obviate the need to dismiss staff. However, there are occasions where employees who go “beyond the pale” in terms of their workplace performance or behaviour need to be dismissed for the good of the business, the overall workplace culture and sometimes the safety and well-being of other employees. However, employers must ensure they are on safe legal ground before they commence such action.
The Fair Work Commission recently upheld the sacking of an employee for serious misconduct that included his “burnout” outside his workplace and being caught on a security camera making rude gestures to his employer.
The fitter, who installed sound systems and other equipment in cars at an automotive outlet in Melton, Victoria, was dismissed for serious misconduct following a series of incidents over three consecutive days in August last year.
The employer accused the fitter of performing a burnout in its driveway, failing to perform his duties to the required standard when he worked on a loyal customer’s car, later intimidating them, and making “rude and aggressive gestures” aimed at management that were caught on a security camera.
The employer argued that each of the fitter’s actions, when viewed together or individually, clearly demonstrated that he did not expect to have a continuing employment relationship. It claimed the fitter was prepared to damage the business interests when he abused management, intimidated customers and actively tried to destroy its reputation. It said the incidents constituted valid reasons under the Fair Work Act to end his employment and that the dismissal was not harsh, unjust or unreasonable as alleged by the employee.
The relevant section of the Fair Work Act states that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must consider:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
The burnout occurred at approximately 3.30 p.m. on Thursday 11 August 2016 and left extensive marks on the driveway. The employer submitted that it caused a cloud of black smoke to drift across the adjoining properties and caused surface damage to the driveway. It was also a significant health and safety incident with the potential for the vehicle to collide with the adjoining buildings or trees that line the driveway. The employer also indicated the appearance of the black rubber marks on the driveway created the potential for customers to be concerned about how their vehicles were treated when left at the premises.
While the fitter acknowledged his actions, he claimed his behaviour was the result of his frustration at the working conditions and his concerns about the workplace culture. He claimed the employer wanted to “get rid” of him and saw him as a “troublemaker” because he was prepared to be a whistleblower and raise concerns about the workplace that his colleagues were too afraid to broach.
The fitter said his dismissal was a disproportionate response to the incidents and that the employer should have imposed a lesser punishment. He said he made the burnout because he was not given enough time during his lunch breaks and had been wrongly accused of stealing from the till and taking tools from the workshop. He also said he was also upset with the employer’s OHS standards, claiming he was forced to lie in water when working on cars and had been bullied and harassed in the workplace.
The Commissioner considered each of the three incidents “significant” and “accentuated by the fact that they occurred on three consecutive days”. He accepted that the fitter carried out the burnout in a relatively confined space, in close proximity to trees and buildings and caused surface damage to the property.
While the Commissioner considered the rude hand gestures caught on camera as “relatively light hearted”, they assumed greater significance due the timing of the incidents. It suggested there was some concerted action involved.
The Commissioner concluded that the three incidents, including the poor workmanship and subsequent aggression towards the customer concerned, viewed in combination, provided satisfactory grounds (a “valid reason”, according to the Act) for the fitter’s dismissal. He said the incidents were calculated to destroy any remaining trust and confidence that the business had in the fitter and his ability to act professionally in the workplace. “They accordingly provided the basis for his summary dismissal on grounds of the serious misconduct,” he said.
The Commissioner also disagreed that the employee was denied procedural fairness in the context of his termination and submits he refused an opportunity provided to him to attend a meeting to discuss the issues involved, apparently because he was unwell. The employer was also advised that his legal representatives were prepared to meet, but without the employee being present. The “show cause” letter inviting the employee to the meeting also offered him the opportunity to bring a support person.
A genuine focus on creating a positive, best-practice workplace culture is aimed at encouraging employees to perform at their best and learn from genuine mistakes as well as protecting the workplace culture from genuinely difficult employees who can infect the workplace culture and other employees.
It is notable in this case that three employees and a customer were willing to give evidence for the employer. The fitter’s evidence was contradicted by the other employees who did not see the employee as a whistleblower, noted some degree of premeditation in his actions and, in one case, described the employer as “a very loyal and compassionate employer.”
iHR offers training courses that will help build a positive, best practice workplace culture and enable managers to give effective performance feedback to staff, including courses around Managing Everyday Performance with a focus on:
• What effective performance management is and why effective performance management is imperative in the modern workplace;
• The link between leadership behaviour and performance and how to create a high performance culture through effective application of expectation setting, empowerment, evaluation, rewards and effective feedback
• Techniques to conduct effective everyday performance conversations and give feedback to staff that is fair, accurate and consistent with the expectations of workplace law;
• The importance of fairness and accuracy when managing performance and maintaining consistency between all elements of the performance management process;
• How to apply relevant processes in managing poor performance dependent on your organisational procedures, including the basic principles associated with procedural fairness in formal processes and termination of employees; and
• Requirements related to documenting and recording performance issues