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UpdatesJun 19, 2019

Poor performance cannot be dealt with as misconduct, FWC rules

If you have to take disciplinary action against an employee, it is essential you understand exactly what processes and procedures you must follow to avoid being liable to a hefty penalty.

If you have to take disciplinary action against an employee, it is essential you understand exactly what processes and procedures you must follow to avoid being liable to a hefty penalty.

Logistics company StarTrack discovered this when it incorrectly dealt with an employee’s failure to produce legally compliant work as a matter of misconduct rather than poor performance.

Its employee, a bulk fleet supervisor who had been in the position for five years, was assigned an additional duty to review drivers’ run sheets and sign them off as compliant or non-compliant, in accordance with the company’s safety and fatigue management policies and Chain of Responsibility (CoR) laws.

The employee had been undertaking this task for about two years when the employer conducted audits of the driver run sheets and diaries at a number of its facilities.

After it checked 50 of these employee’s run sheets, selected randomly, it found that 14 were non-compliant. It then checked a further 28 run sheets and found that 25 of these were non-compliant.

In the following days, the employer conducted three meetings with the employee where he was shown examples of the run sheets he had incorrectly signed off as compliant.

The day after the last meeting, the employee sent his employer the following email:

“After yesterday meeting I left feeling very distressed and upset and

disappointment and the affect it has taken on my wife and family is enormous

After 8 years of loyal employment, I’ve always had the best intentions for the company and always did my best, making this very hard to comprehend, given that you have indicated your intentions for my dismissal. I need to provide detail to my legal counsel, can you please provide me with,

1. Can company confirm I was suspended with full pay

2. Details of the process

•  Clarification of the allegation to me in writing

•  When will the meeting take place next

Thank you for your co-operation in this matter, I’m looking forward to hearing from you soon”

About a week after, the employer sent the employee a letter setting out its allegations in writing, stating “StarTrack has formed a preliminary view that your conduct amounts to misconduct, justifying the termination of your employment”.

The employee wrote back to the employer, responding:

“I take these allegations seriously and note that it is clear that I haven’t been provided proper training. As such, I request a copy of the policies and procedures in relation to these matters so that I can familiarise myself with them and proper training which will ensure that I am properly signing of [sic] drivers run sheets.”

He also sent a personal statement which concluded:

“I am ready and willing to work with StarTrack to resolve these matters so that I can continue to contribute to the success of StarTrack.”

However, in making its decision to terminate the employee, the employer said that the employee:

“showed no real understanding of the importance of the issues raised with him, and gave no indication that he was prepared to work with StarTrack to ensure compliance going forward. As I have said, his focus during this [sic] interviews was on blaming others”

and ultimately decided to dismiss the employee:

“given the very serious safety concerns that led to the disciplinary process undertaken with respect to [the employee] and his lack of understanding of the seriousness of those concerns, and his unwillingness to take responsibility and commit to proper process”.

About two and a half weeks later the employer sent the employee a termination letter which included the following:

“I refer to the show cause letter issued to you on 15 November 2018 and to the subsequent meeting with you on 19 November 2018 to discuss your response. … The meeting was held to provide you with an opportunity to respond to the proposed termination of your employment for the reasons set out in the show cause letter. In summary the letter referred to the following:

•  You failed to correctly perform your role as a Supervisor in that you signed off on driver run sheets which did not meet with the mandatory requirements under Chain of Responsibility and did not take any action against drivers incorrectly completing the forms.

[Y]our conduct is in direct violation of company policies and procedures and has failed to meet the appropriate standards of workplace behaviour. Specifically you have breached the following clauses from Our Ethics and our Minimum Standards.

After consideration of all the available information and having allowed for all factors, I found your response and explanation as insufficient to address my concerns therefore I made the decision to terminate your employment …

You will receive a payment in lieu of your notice period, which along with any outstanding entitlements will be processed and paid at the earliest opportunity. …”

In the unfair dismissal hearing, Fair Work Commission (FWC) Senior Deputy President Jonathan Hamberger said that the employer did have a valid reason to dismiss the employee, but because the employee’s mistakes were not wilful or deliberate, it should have been treated as a matter of poor performance rather than misconduct.

“[The employee] was not – but should have been – issued with a warning about his unsatisfactory performance,” Senior Deputy President Hamberger said.

He noted that the employee had indicated a willingness to undertake further training and resolve his performance issues, an opportunity which the employer did not give him.

“[The employer] should not have dismissed him without giving him a warning and a chance to improve.”

“[The employee’s] dismissal was harsh and unreasonable.” StarTrack was ordered to pay the employee $17,504.79, less tax, plus superannuation.

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