Stick to the facts – why you should ask first before dismissing a worker

By Andrew Hobbs on November 6th, 2017
  1. Termination of Employment
  2. Unfair Dismissal


THE IMPORTANCE of confirming reports about a worker has been brought home to a South Australian labour hire company, after the Fair Work Commission (FWC) found it wrongfully dismissed a worker after acting on instructions from its client.

The worker had been a casual employee of the Australia Personnel Global (APG) since 2013, working an average of 37.5 hours per week at the Baiada Poultry abattoir in South Australia.

After two periods of parental leave, the worker returned to full-time work in November 2016, before being dismissed on 23 June 2017 for poor punctuality.

During this time, the Baiada records showed the worker was late for work on 22 occasions, left work early six times and was absent from work on six occasions.

During that time, Baiada told the FWC it had asked APG to counsel the worker on her tardiness on three occasions.

On 22 June, Baiada determined that the worker was unsuitable for further employment and told APG of its decision, with the worker being told the next day that her assignment at APG had ended and that APG would look for other work for her the following week.

APG did not contact the worker offering her another role until 2 September, 10 weeks later and two days before the unfair dismissal hearing was due to begin.

While APG argued that it had not dismissed the worker, Commissioner Christopher Platt said the delay in offering a new role to the worker was “a clear departure” from its “regular and systemic” schedule of offering her shifts and had the effect of denying her further shifts, which he said was equal to dismissal.

A representative of APG told the FWC it had concluded there was nothing it could do to convince the abattoir to retain the worker given her “multiple attendance issues”.

The firm had particular concerns over “the frequency that she was late, the frequency that she left her shifts early and the frequency that she was not at work at all,” citing examples on 7, 8, 9 and 12 June as examples of the latter.

However, Baiada conceded its records marked lateness of one minute the same as that of 30 minutes.

Digging deeper

To counter the abattoir’s claim of poor attendance, the worker told the FWC that she had presented a medical certificate for the period 7-9 June and had also advised the company of her illness for 12 June, the day prior.

Commissioner Platt said some examples of the worker leaving work early were more accurately described as the worker not working as much overtime as other employees.

“When the records are evaluated and considered against this information, I find that it would be dangerous to rely on them to support the allegations of ‘ongoing issues with punctuality and attendance’ made against [the worker].”

Commissioner Platt said APG should have sought more detailed information on the basis for the abattoir’s decision, and then taken that to the worker.

“Had it done so, APG would have had an opportunity to raise the inconsistences presented to me at the hearing of this matter which would have resulted in APG discovering that most of the records contained in Baiada’s roll call document were incorrect.”

“[The labour hire company] appears to have simply acquiesced in the removal of the employee from Baiada’s site without having an independent view as to the capacity or conduct of [the worker].”

Finding the worker had been wrongfully dismissed, and that the allegations of poor attendance and punctuality were not substantiated, Commissioner Platt awarded her $8,597 – roughly 12 weeks’ salary, minus other earnings she had made during that period.

Avoiding the same mistake

In the case above, the labour hire company failed to inform the worker that she was not meeting company expectations (however flimsy that claim might have been), failed to give her an opportunity to improve and failed to give her an opportunity to address the complaints against her.

The Managing Lawful Dismissal eBook, published by Portner Press, says that in order to lawfully dismiss an employee, you must advise them of the potential to dismiss and the reasons it is being considered.

You should then allow the worker time to respond, and consider that response before making your decision.

Further information about what else you should consider, including alternatives to dismissal, what makes dismissal unlawful and notice and termination pay requirements, are contained in the 57-page eBook, written in plain English by employment law expert Charles Power.

Don’t make a decision without having first consulted The Managing Lawful Dismissal eBook – it can help you to avoid costly exposure to penalties associated with unfair dismissal.

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