Many workplaces can relate to having an employee whose behaviour and conduct is just a little…off. The employee may be too aggressive, too intimidating or just plain weird. However, various one-off instances of the worker acting strangely or aggressively would not itself amount to serious misconduct or warrant a dismissal. Further, many employers shy away from dismissing the employee for fear of an unfair dismissal claim from the sacked employee alleging that the dismissal, was “harsh, unjust or unreasonable” pursuant to the Fair Work Act 2009. In considering whether a termination is harsh, the Fair Work Commission (FWC) will determine if there was:
- A valid reason for the dismissal
- Adequate notification of that reason communicated to the employee, and
- An opportunity for the employee to respond
A recent FWC case demonstrated how an employer got it right when terminating a low performing, “strange” worker.
Case study: Thanh Ly v Coles Group Supply Chain ty Ltd T/A Supply Chain
Mr Ly had worked at Coles Group Supply Chain (Supply Chain) for approximately 7 years. Throughout the course of his employment, he was constantly managed regarding his low performance and counselled about appropriate workplace behaviours.
At a disciplinary meeting on 5 March 2014, Mr Ly was terminated for misconduct “against a backdrop of … multiple previous breaches of Supply Chain’s code of conduct and the applicable enterprise agreement”.
The disciplinary meeting took place due to events which had occurred on 26 February 2014, in which it was found that Mr Ly engaged in conduct that was:
- Aggressive and inappropriate by telling a co-worker “what the f**k are you trying to bash me?” when the worker was looking for missing equipment;
- Aggressive and inappropriate behaviour toward a different co-worker when he squeezed and pulled the co-worker’s arm; and
- Inappropriate behaviour amounting to sexual harassment to a female co-worker who felt harassed when Mr Ly made a provocative gesture and comment
Witness statements submitted by Supply Chain revealed that co-workers often saw Mr Ly taking extended toilet breaks and staring into space. A further incident in October 2013 involving Mr Ly was disclosed in which Mr Ly went up to the glass wall of an office, looked at the two co-workers sitting inside the office and started unzipping and zipping the fly on his shorts once or twice. Mr Ly was counselled at the time for his inappropriate behaviour.
In light of the above, the FWC was satisfied that there was a valid reason for Mr Ly’s termination and that it was not harsh, unjust or unreasonable.
Supply Chain was able to produce records of regular meetings that occurred between Mr Ly and his supervisors which “provided adequate direction to Mr Ly”. At the disciplinary meeting, Mr Ly had a support person and was presented with witness statements regarding the events that had occurred on 26 February 2014. He was provided with an opportunity to respond to allegations at the meeting, with Supply Chain ultimately terminating him for his “extended history of unacceptable behaviour and poor performance, despite counselling”.
The FWC found that the procedures adopted by Supply Chain in dismissing Mr Ly were appropriate and that the “level of coaching and management time invested in Mr Ly was generous”.
Lessons for employers
If a worker does not perform to the level expected and engages in inappropriate behaviour in the workplace, employers are entitled to dismiss that worker. However, in order to prove that a dismissal was fair in the circumstances, employers should:
- Keep records of each instance of poor performance or inappropriate conduct
- Document each conversation or meeting had with the worker, and
- Provide the worker with procedural fairness in his or her dismissal
If you require assistance in relation to managing a difficult employee, or regarding dismissal risks, please contact HR Legal.
This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.