Unfair Dismissal – Multiple Issues Count

Unfair Dismissal – Multiple Issues Count

The Fair Work Commission has upheld the unfair dismissal of a warehouse worker who repeatedly breached his employer’s policies on smoking, eating and drinking in the workplace.

A car accessories manufacturer dismissed the worker in August 2018 after giving him two written warnings for smoking outside its designated smoking area, including one occasion while driving a forklift.

He had been given multiple verbal warnings for smoking, for breaching policies against eating and drinking in the warehouse, for being late to work, and for leaving a safety chain on the ground when it should have been blocking the entrance to the warehouse.The worker was given the opportunity to respond and said in response to a show cause notice that “for the most part I can’t say I’m innocent”.

He claimed he had not intentionally been trying to disregard company policies and procedures but that he was a “creature of habit” and found it hard to break the routines he had developed.

The employer terminated the employee due to his repeated failure to comply with clear instructions and to take responsibility for his actions.

What makes a dismissal unfair?

The Commission has a legislated criterion for deciding whether a dismissal is unfair.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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 unfair 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 Commission considers relevant. The Commission then quoted the High Court:

[60] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

The worker challenged his dismissal in the Commission, arguing the designated smoking area was inadequate, and lacked seats or shelter.

“[He] did not identify the basis on which he asserts that an employer is required to provide a smoking area of specific size or ambience or how a failure to do so would make the no smoking policy unenforceable,” Deputy President Binet said.

The worker said the warnings he received for consuming a pie and coffee in the workplace had been issued in an informal manner, and that he did not appreciate their significance. The worker argued that the no eating or drinking policy was unfair, because office employees were permitted to drink in the office.

But the Deputy President found the policy of no food or drink in the warehouse was “not an unreasonable one”.

“Unlike in the office, heavy and potentially dangerous equipment such as forklifts are operated in the warehouse,” she said.

“Eating and drinking while operating such equipment poses potential safety risks. Food and drink also pose a risk to stock stored in the warehouse … It is not unreasonable for [the employer] to take steps to prevent stock damage … [He] repeatedly breached these policies, procedures and directions notwithstanding that he was informally and formally warned not to do so.”

The Commission found:

[99] While Mr Hanson’s conduct may not in isolation have justified his dismissal, in a similar way to the conclusion reached by Sams DP in Dickson v Calstores Pty Ltd [2011] FWA 6858 I am satisfied that Mr Hanson’s conduct involved, in aggregate, a consistent pattern of behaviour that demonstrated a repeated disregard for and refusal to comply with Rhino Racks lawful and reasonable policies procedures and directions. I am satisfied in those circumstances Mr Hanson’s conduct constituted a valid reason for his dismissal.

Lessons for Employers

The main takeaway from the case is that a conglomeration of issues may be sufficient to dismiss an employee. One of these issues was not sufficient to terminate the employee, but multiple and unrelated issues with an employee’s conduct can be enough to justify termination.

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